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AN EXPOSITION 



OF THE 



CONSTITUTION OF THE UNITED STATES, 



DESIGNED 



FOR THE USE OF TEACHERS, AND ADVANCED CLASSES IN 
SCHOOLS, AND CITIZENS GENERALLY. 




BY 



A . O. WRIGHT, 



AUTHOn OF AN ANALYSIS AND EXPOSITION OF THE CONSTITirnoJT OF 
THE STATE OF WISCONSIN. 



rav«c.4 



" That which contributes most to preserve the State is to educate children 'with 
reference to the State ; for the most useful laws, and most approved by every 
statesman, will he of no service if the citizens are not accustomed to and brought 
up in the principles of the Constitution."— ArttMWt Politics, 13ook V., cu 9. 



MADISON, WIS.: 

David At wood, Publisher. 
1880. 



-3-K 



.5 



ft 1 



COPYRIGHT, 
DAVID AT WOOD. 

1SS0. 



DAVID ATWOOD, PRINTER AND STEREOTYPER, 

Madison, Wisconsin. 



PEEFACE. 



It is a hopeful sign for the future of our country, that the Consti- 
tution of the United States is studied so largely in our schools. In 
a popular government, the people ought to understand the principles 
on which the government is based, and the machinery of govern- 
ment by which these principles are to be earned out; thai is, they 
ought to understand the Constitution of their nation. Some con- 
fused and imperfect knowledge of this will naturally be picked up 
by most citizens; and a few lawyers and others will gain a compre- 
hensive knowledge of the Constitution. But a clear and accurate 
knowledge cannot be generally diffused, except by regular instruc- 
tion in the public schools. It is therefore a hopeful sign that this 
instruction is now given in a large number of our schools. 

This book is the result of several years' experience in the class- 
room and in teachers' institutes. That experience has led to certain 
methods of presenting the subject matter in the text book. 

The order of the Constitution is followed. The Constitution of 
the United States has an order of its own, and a good one, and it is 
an aid to the memory of the student to observe that order. 

Some topics are found scattered in different places, like the topic 
of impeachment. No arrangement of the Constitution can avoid 
this difficulty. Topics cross one another, and an arrangement 
which would bring some topics together would scatter others. The 
best plan for studying is to follow the order of the Constitution. 
But an opportunity for considering together all the parts of any 
topic is given by the analysis at the head of each section. 

It is recommended that the text of the Constitution be mem- 
orized, or at least all the more important portions of it. As an aid 
to topical recitation the heading of each paragraph is printed in 



4 PREFACE. 

small capitals. The matter printed in smaller type may be omitted 
if there is lack of time, or with younger classes. 

The author's aim has been to use plain language, and direct and 
simple forms of statement. 

The question of whether we are a Nation or a Confederacy, was 
settled by the framers of this Constitution. But it has also been 
setted by our civil war in a more effectual way than by any words 
written on paper. Any writer on the Constitution who dodges this 
most important issue is false to his country as well as to truth. On 
this and other questions about which there is a difference of opinion, 
the truth ought to be spoken without hesitation or equivocation. 
This the author has meant to do. 

This work has been thoroughly revised in MSS. by the law firm 
of Lewis, Lewis & Hale, of Madison, the senior member of which 
is United States District Attorney. Portions of it have also been 
submitted to officers who have to deal with the subjects treated of 
in those portions. The author's acknowledgments, are also due to 
many teachers and superintendents of schools for suggestions 
which have helped to improve this work. Should, however, any 
errors still be found in it, the author will be thankful for due notice 
of the same. 

Madison, Wis., August 23, 1880. 



Note. — There is an apparent, but not a real, discrepancy between 
the property valuations given on pages 34 and 292. The former is 
the true valuation, the latter the assessed valuation. In estimat- 
ing the average wealth of our citizens, the true valuation is given. 
In estimating the effect of a property qualification for the suffrage, 
the assessed valuation is used, which is the one on which the quali- 
fication to vote would be based. 



TABLE OF CONTEXTS. 



Pages. 

PRELIMINARY MATTERS $■% 

Preface 3 

Table of Contents 

"Thou, too, sail on, Ship of State'' 7 

General Plan of the Constitution 8 

ANALYSIS AM) EXPOSITION OF THE CONSTI- 
TUTION I 

The Enacting Clause 9-15 

Article First — The Legislative Department 16-143 

Section First — In Whom Vested 17 

Section Second — The House of Representatives . . 21 

Section Third — The Senate 

Section Fourth — Elections and Sessions 44 

Section Fifth — Powers of Each House Separately 49 

Section Sixth — Powers of Members 60 

Section Seventh — The Process of Making Laws 65 

Section Eighth — Powers of Congress 72 

Section Ninth — Prohibitions on Congress 122 

Section Tenth — Prohibitions on the States 133 

Article Second — The Executive Department 144-200 

Section First — Organization 149 

Sections Second and Third — Powers and Duties 

of the President 170 

Section Fourth — Removal upon Impeachment . . 19S 

Article Third — The Judiciary Department.. 201-225 

Section First — Organization 203 

Section Second — Jurisdiction of the Courts 206 

Section Third — Treason 219 



6 TABLE QF CONTENTS. 

ANALYSIS AND EXPOSITION OF CONSTITUTION. Pages. 

Article Fourth — Relations of the States... 226-246 

Section First — State Records 227 

Section Second — Relations of States to the in- 
habitants of other States 228 

Section Third — New States and Territories 233 

Section Fourth — Federal Protection of States. . . 244 

Article Fifth — Amendments 247-251 

Article Sixth — Supremacy of Tnis Constitu- 
tion 252-256 

Article Seventh— Ratification of this Con- 
stitution 257-259 

Amend5ients I-X — Bill OF RlGnTS 260-279 

Article I — Freedom of Thought 265 

Article II — The Right to Bear Arms 266 

Article III — Quartering Soldiers 267 

Article IV — Unreasonable Searches and Seiz- 
ures 268 

Article V — Rights of Accused Persons before 

Trial 269 

Article VI — Rights of Accused Persons on 

Trial 272 

Article VII — Trial by Jury in Civil Cases 274 

Article VIII — Excessive Bail, Fines and Punish- 
ment 276 

Article IX — Strict Construction of Personal 

Rights 277 

Article X — Limited Powers of the U. S. Gov- 
ernment 277 

Amendments XI and XII — Miscellaneous 280-282 

Article XI — State Repudiation 280 

Article XII — Election of President 282 

Amendments XIII-XV — Results of the Civil 

War :... 283-297 

Article XI 1 1 — Slavery Abolished 285 

Article XIV — Miscellaneous Provisions Relating 

to the Civil War 286 

Article XV — Negro Suffrage 297 



" Thou too — sail on, O, Ship of State! 
Sail on, O Union, strong and great ! 
Humanity, -with all its fears, 
With all its hopes of future years, 
Is hanging breathless on thy fair / 
We knozv ivhat Master laid thy heel, 
What Workman wrought thy ribs of steel, 
Who made each mast, and sail, and rope, 
What anvils rang, what hammers beat, 
In ivhat a forge and zvhat a heat 
Were shaped the. anchors of thy hope! 

"Fear not each sudden sound and shock, 
'Tis of the wave and not the rock; 
y Tis but the /lapping of the sail, 
And not a rent made, by the gale! 
In spite of rock and tempest's roar, 
In spite of false lights on the shore, 
Sail on, nor fear to breast the sea! 
Our hearts, our hopes, are all with thee, 
Our hearts, our hopes, our prayers, our tears. 
Our faith triumphant o'er our fears, 
Are all with thee, — arc all with thee.'" 1 

— Longfellow 



GENERAL PLAN OF THE CONSTITUTION. 



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TOE ENACTING CLAUSE. 
ART. I. Tiie Legislative Departme:tt. 
ART. II. The Executive Department. 
ART. III. The Judiciari- Department. 
ART. IV. Relations op the States. 
ART. V. The Method op Amendment. 
ART. VI. The Supremacy op this Constitution. 
ART. VII. The Ratification op this Constitution. 

AMENDMENTS I-X. Bill op Rights. 

gj J AMENDMENTS XI-XII. Miscellaneous. 

I 1 

a 

| AMENDMENTS XIII-XV. Results op the Civil War. 

3 1 -• • 



THE CONSTITUTION* OF THE UNITED STATES. 



THE ENACTING CLAUSE. 



11 A government of the people, by the people, and for the people." 

— Abraham Lincoln. 



We, the people of the United States, in order to form a more perfect union, 
establish justice, insure domestic tranquility, provide for the common 
defense, promote the general welfare, and secure the blessings of liberty 
to ourselves and our posterity, do ordain and establish this Constitution 
for the United States of America. 

I. The United States a republic. — Governments 
are classified according to their form as Monarci. 
Aristocracies and Democracies. 

1. A Monarch)/ is a government by one person. A 
monarchy may be either absolute or limited. In an 
absolute monarchy the sovereign is not restricted in his 
powers by any constitution; in a limited monarchy he 
is restricted in his power by some kind of constitution, 
written or unwritten. 

2. An Aristocracy is a government by a small part of 
the people, who form a privileged class. An aristocracy 
may be one of birth, or of wealth, or of both combined. 

3. A Democracy is a government by the people. 
A democracy may be either pure or representative. A 
pure democracy is one in which the voters themselves 
meet and make laws. In a representative democracy 
the voters elect representatives to make the laws. A 
representative democracy is usually called a republic. 



10 ENACTING CLAUSE. 

It is plain that in so large a country as ours the voters 
cannot assemble to make laws, but that they must do 
that work by representatives. So that in a large coun- 
try a pure democrac}' is impossible. If the government 
is democratic it must be a representative democracy. 

The United States then is a republic. It is not the 
government of One or of the Few, but of the Many, 
And as it is representative in form, it is a Republic. 

A republican form of government is guaranteed to 
every State in the Union, by this Constitution (Art. 
IV, Sec. 4). Whatever else this means, it means at 
least that no State shall ever become a monarchy or an 
aristocracy. 

II. The people the source of power. — A repub- 
lic is a government by the people through representa- 
tives. The representatives govern, but they do not 
govern by any inherent right, but only as representa- 
tives. The people are the source of power. In the 
words of President Lincoln, this is "a government of 
the people, by the people, and for the people." 

The members of the House of Representatives are 
the most direct representatives of the people, as their 
name indicates. But every officer of the United States 
or of any State, is directly or indirectly chosen by the 
people, and is responsible to the people for the faithful 
performance of his duties. 

The Enacting Clause recognizes this fact, that the 
people are the source of power, and says expressly " We, 
the people of the United States, do ordain and establish 
this Constitution." 

III. A popular government best. — A demo- 
cratic government is best, in any country in which the 
people are fitted for it. Rude and barbarous nations, 
or nations intelligent, but debased morally, are not 



ENACTING CLAUSE. 11 

fitted to govern themselves. Hence monarchies or aris- 
tocracies are best for such nations. But where the peo- 
ple generally have a fair degree of intelligence and of 
moral character, a republican government is best. 

The people will doubtless make mistakes and do 
wrongs, but so will any government, and the mistakes 
and errors of a republic are certainly no worse than 
those of a monarclry or an aristocracy. No one claims 
that republics will be perfect. Nothing human is perfect. 

But we can reasonably claim that those oppressions 
and corruptions which are easy to begin and to keep up 
under other forms of government, are almost impossi- 
ble under a republic. In an absolute monarchy the 
interests of the king and his favorites are attended to, 
without much regard to the interests of the rest of 
the people. In an aristocracy the interests of the 
ruling class are the only interests thought of. But 
in a republic, the interests of one class are balanced by 
the interests of the other classes. All are represented; 
and the interests of all are secured as well as is possi- 
ble in human affairs. The public discussions, which 
are necessary in a popular government, prevent secret 
forms of corruption, and help to secure justice and 
purity of administration. 

In short, when the people of any country are fit to 
take care of themselves, they can do it better than any 
king or nobles can do it for them. 

IV. Objects of this constitution. — The objects 
of this constitution, as here stated, are six: 

1. To form a more perfect union. 

2. To establish justice. 

3. To secure domestic tranquility. 

4. To provide for the common defense. 

5. To promote the general welfare. 

6. To secure the blessings of liberty to the people of the United 
States and their posterity. 



12 ENACTING CLAUSE. 

These all refer to the defects in the government of 
the United States at that time, under the Articles of 
Confederation. 

That union was (1.) a very imperfect one; (2.) it did 
not establish justice; (3.) it did not ensure domestic tran- 
quility; (4.) it did not provide efficiently for the com- 
mon defense; (5.) it could do but little to promote the 
general welfare; (6.) and therefore it was not strong 
enough to secure the blessings of liberty to this country 
for any great length of time. 

The defects of the Confederation were many; but they 
may all be summed up in one phrase: The real power 
was vested in the several states, and Congress had no 
power to enforce its laws. Congress could resolve, but 
it could not execute; it could ask the states to pay taxes, 
to furnish troops, to conform to treaties, to do justice 
to each other's citizens, but it could not command them. 

V. The constitution compared with the arti- 
cles of confederation. 

1. This Constitution forms a more perfect union than that under 
the Articles of Confederation. It is still not a perfect union; for it 
was not wished to destroy the States and make one centralized gov- 
ernment, nor would that have been wise. But the loose and ineffi- 
cient Confederation was exchanged for a Federation in which a 
strong national government was set up over States still retaining 
much power. 

2. Justice is established by means of a national Judiciary, which 
protects foreigners and the citizens of other states against unjust 
decisions of any State courts. [See Article III.] 

3. Domestic tranquility is ensured by the provision that the 
United States shall protect each State against domestic violence. 
[Article IV, Sec. 4.] Shays's rebellion in Massachusetts in 1786, 
had called general attention to the need of a strong central govern- 
ment to assist the states against such insurrections. 1 

1 Washington wrote at that time to a member of Congress: "You talk, 
my good sir, of employing influences to appease the present troubles in Mas- 
sachusetts. Influence is not government. Let us have a government by 
which our lives, liberties and properties will be secured, or let us know the 
worst at once." 



ENACTING CLAUSE. 13 

4. The common defense could only be provided for by a govern- 
ment capable of raising and supporting armies and navies. Even 
in the enthusiasm of the Revolutionary War, the central govern- 
ment showed how weak it was, to raise armies or collect taxes, and 
thinking men saw that in another war it might be still worse. 

5. To promote the general welfare is an elastic expression, capa- 
ble of being lengthened or shortened according to our own ideas of 
what is for the general welfare. This clause ha3 covered things as 
different as the purchase of Louisiana, an expedition to the North 
Pole, a system of weather reports, and the establishment of the 
Smithsonian Institution. Under this clause the powers of the gen- 
eral government may yet be greatly extended. 

6. To secure the blessings of liberty, law is needed as well as 
liberty. Liberty alone soon degenerates into license, and that into 
anarchy, which is worse than despotism. 

The American idea of liberty is of liberty protected by law. This 
principle is carried out in our own national government. The 
power of the general government is given to it in order to secure 
the blessings of liberty to the people; not to destroy that liberty, 
but to protect it. Under this government we have flourished during 
this first century as few nations of the world have ever done. We 
have also survived the shock of a great Civil War, which settled 
the question whether this Constitution should be accepted for all it 
means. We may therefore reasonably hope that our liberty, pro- 
tected by the strength of our national government, will be handed 
down to a remote posterity. 

VI. The United States a nation, not a con- 
federacy. 

The enacting clause reads, " We, the -people of the United States, 
do ordain and establish this Constitution." 1 It does not read, " We 
the States do contract and enter into a treaty with each other.'' 
The United States is therefore one nation, and not a confederacy of 
independent allied states. The source of power is not in the several 
states, but in the people of the United States. This Enacting 
Clause was not worded as it is, hastily or inconsiderately. There 
was a great difference of opinion in the United States, both before 
and after this Constitution was adopted, upon this very point. The 
Thirteen Colonies, though all alike dependent upon England, were 
independent of one another. They had formed several alliances 
among themselves for defense, and when the struggle with the 



14 ENACTING CLAUSE. 

mother country began they were drawn together by the necessities 
of the war. Many thoughtful men advocated a much closer union 
even in 1775; but the Articles of Confederation adopted in 1781, 
were as much as the states were then willing to concede. And it 
was not until experience had shown the great evils which come from 
the jealousies and rivalries of independent states, held together 
only by a weak confederate government, that the people became 
willing to establish a real national government. And even then 
there was a large minority opposed to the Constitution, because it 
took away the independence of the states. 

After the Constitution was adopted the contest was carried on by 
the two parties which were immediately organized, the Federalist 
and the Anti- Federalist. As the Constitution by its practical work- 
ings showed its value, it came to be accepted generally by the people, 
as the bond of our Union. The Supreme Court has decided that 
these words, " We, the people of the United States, 1 ' etc., declare 
us to be one nation. And at last our great Civil War has settled 
the question practically. The seceding States claimed not only the 
right of revolution, which every oppressed people has, but the 
right of secession, claiming that we were not one nation but a con- 
federacy of independent allied States, and that any State had a 
right to dissolve the alliance at pleasure. The result of the war 
decided that the American people are one nation, and mean to 
remain so. 

VII. Local self-government and national unity. 

The United States differs from many republics in being composed 
of several States. It is a Federal Republic in which some powers 
are given to the state governments and some to the United States 
government. Just where to draw the line between these two sets 
of governmental functions, is a difficult question both in theory and 
in practice. Ever since the Constitution was adopted, there have 
always been two political parties, the one inclined to limit the pow- 
ers of the United States government and increase the powers of the 
states, and the other party inclined to increase the powers of the 
United States government and limit those of the states. But, on 
the whole, the general government has been slowly gaining power 
at the expense of the state governments. This growth in power, 
however, has not been so great as to change the essential relations 
of the two sets of governments. These principles may be stated 
thus : 



ENACTING CLAUSE. 15 

1. The United States government has all the power needed for 
national independence. 

2. The state governments have all the power needed for local self- 
government. 

Every person in the United States (except in the District of Co- 
lumbia and unorganized territories, in forts, arsenals, and dock- 
yards, or on the high seas) is thus subject to two jurisdictions. He 
is subject to two sets of laws, which are made and administered by 
two different sets of officers, and he pays taxes and owes allegiance 
to both governments, that of the state or territory in which he is. 
and that of the United States. For nearly all the ordinary rela- 
tions of business and society, he looks to his state law and state 
government. He marries and is divorced, educates his children, 
transmits his property, buys and sells, and is protected from thieves 
and murderers, under the laws of the state or territory where he is 
at the time, But he is protected from foreign foes by United SI 
troops and ships; he uses United States money; sends and receives 
letters through the United States postoffices; and, if he is a for- 
eigner, he can only be naturalized according to United States law. 
It is plain that in ordinary business and society the state govern- 
ment touches the citizen at far more points than the general gov- 
ernment does. 

But the principle of local self-government is earned out still fur- 
ther. The states leave the affairs of each township, village, city or 
county to be regulated by the people thereof, under the general 
provisions of state laws which limit and define the powers of these 
subdivisions of a state. There is nothing in the United States Con- 
stitution which requires this, and not very much in the constitutions 
of the several states. But it is a part of the unwritten constitution, — 
the political habits of the American people. Thus the federal 
character of our republic harmonizes with the American habit of 
local self-government, and is thus sustained by a power far more 
effectual than any written constitution. 



16 THE LEGISLATIVE DEPARTMENT. [I. 



ARTICLE I. 

THE LEGISLATIVE DEPARTMENT. 

"There the common sense of most shall hold a fretful realm in awe. 
And the kindly earth shall slumber, laptin universal law.' 1 

— Tennyson. 

I. General plan of this article. — This Article 
is put first, because it is the most important and the 
longest Article in the Constitution. A republican gov- 
ernment is a government of laws, not a government of 
men. And therefore in such a government the most 
important part is to make the laws, which is the duty 
of the Legislative Department of the government. Laws 
must be made by the Legislative Department before 
they can be executed by the Executive Department, or 
before cases can arise under them to be brought before 
the Judicial Department. 

This Article is divided into ten sections as follows: 

Sec. 1, states in whom the Legislative power is vested. 

Sec. 2, treats of the House of Representatives. 

Sec. 3, treats of the Senate. 

Sec. 4, treats of the elections and sessions of Congress. 

Sec. 5, treats of the powers of each House separately. 

Sec. 6, treats of the privileges of members. 

Sec. 7, treats of the process of making laws. 

Sec. 8, treats of the powers of Congress. 

Sec. 9, treats of the prohibitions on Congress. 

Sec. 10, treats of the prohibitions on the States. 



1:1.] IN WHOM LEGISLATIVE POWER IS VESTED. 17 



SECTJON 1. 

IN WHOM THE LEGISLATIVE POWER IS VESTED. 

All legislative powers herein granted shall be vested in a Congress of the 
United States-, which shall consist of a Senate and House of Representa- 
tives. 

I. Departments of ooverkmbnt. — The government 
of the United States is divided into three departments, 

Legislative, Executive and Judicial. The legislative 
department is that part of the government which makes 
the laws; the executive is that part which carries out 
and enforces the laws; and the judicial is that part 
which applies and interprets the laws. These depart- 
ments are not kept quite distinct, but, as we shall see, 
the legislative department exercises some judicial func- 
tions, and the executive exercises some legislative func- 
tions. But these are exceptions to the general rule. 
Of these three departments the legislative is the most 
important and has the most power. It therefore needs 
to be guarded with the greatest care, to prevent its 
usurping power. For this reason it is divided into two 
Houses, that each ma)' be a check upon the other; for 
this reason, the President has a veto; and for this rea- 
son, the members of the lower house are reelected fre- 
quently, to make them feel their responsibility to the 
people. By these expedients, the legislative department 
is restrained from usurping power that does not belong 
to it. 

II. Why there are three departments. 

In this division of the powers and duties of government, the 
framers of our Constiiutbn followed the form to which the people 
of the United S.ates had alwa}*s been accustomed. The govern- 
ment of England was divided into these thre3 departments. The 
legislative power was vested in the Parliament, consisting of a 
B 



13 THE LEGISLATIVE DEPARTMENT. [I: 1. 

House of Lo:ds and a House of Commons; the executive power was 
vested in the King and his Cabinet ministers; and the judicial 
power was vested in the judges. This division of powers was not 
exact and logical, but each branch of government exercised some 
powers that logically would belong to the others, because it had 
been found in practice that it worked well so. The King had a 
legislative power in the veto, as the President also has; the House 
of Commons had a judicial pow.r in presenting impeachments, and 
the House of Lords in trying them, just as the House of Repre- 
sentatives and Senate now have. 

The colonies had naturally adopted forms of government not dif- 
fering much from that of England, and had found them to work 
w/11. And when a national government for the United States wa3 
formed, the same division of powers was adopted without any seri- 
ous question, because the people were accustomed to it, and because 
experience had shown it to be the best way to divide the powers of 
a government. 

As long as the United States was only a confederation of inde- 
pendent states, a congress of delegates was enough without an 
executive or a judiciary. But as soon as the United States was 
made a nation, the three departments of government were made 
necessary. 

III. The colonial governments. — The colonies 
of Great Britain, which afterwards became the United 
States of America, had three different forms of gov- 
ernment. 

1. The Royal Provinces. — In these the governor and judges 
were appointed by the King. The upper house of the legislature 
was generally appoiuted by the governor, and only the lower 
house of the legislature was elected by the people. Both the gov- 
ernor and the king had a veto upon the laws. So that if the repre- 
sentatives of the people passed a law obnoxious to the royal party, it 
could be negatived by the upper house or vetoed by the governor 
or annulled at any time by the king. But no tax could be levied 
without the consent of the legislature. Virginia (after 1624) is the 
best example of a royal province. 

2. The Proprietary Colonies. — In these the supreme power was 
vested in the proprietor, who was either a man or a company. The 
proprietor, if living in the colony, virtually ruled as king, or if in 
England, appointed a governor and other officers. In the case of 



1:1.] CONGRESS. 19 

New York (under both Dutch and English till 1683), the people 
had no voice in the government or in taxation. But in the case of 
Pennsylvania, the people elected both houses of the legislature, and 
the proprietors appointed the governor. 

3. The Chartered Colonies. — In these the people elected their 
own governor and other officers as well as the legislature. Con- 
necticut is the best example of a chartered colony. 

In general terms with some exceptions we may say, that the Xew 
England colonies were chartered, the Middle colonies proprietary, 
and the Southern colonies were royal provinces. 

All these governments contained the germs of popular liberty, 
excepting only the early proprietary government of New York. In 
all the colonies the people wished to govern themselves, and only 
submitted to the arbitrary restriction of the king, and of some of 
the proprietors, because they were compelled to. As soon as they 
rebelled against the English government in 1775, they at once ex- 
pelled their royal or proprietary governors and elected governors of 
their own. They preferred the type of government of the chartered 
colonies, and adopted it as soon as they could. The State govern- 
ments are now substantially of the form of government in the 
chartered colonies. 

And when the people came to set up a true national government 
for the United States, they adopted the same general form. The 
changes that have been made since the adoption of this Constitu- 
tion in the forms of the State and National governments, have been 
in the direction of popular representation and personal liberty. 

IV. Congress. — The name Congress, was the name 
given to the delegates from the colonies under the Arti- 
cles of Confederation. This name was retained for the 
legislative body of the United States under the Consti- 
tution. Under the Confederation, Congress consisted 
of but one House. But by the Constitution, Con- 
was made to consist of two Houses, for several reasons, 
[1.] to hinder foolish or unscrupulous legislation, [2.] to 
represent the States in one House and the people in the 
other, [3.] and because the English Parliament and the 
colonial legislatures had two Houses, so that it was one 
of the political ideas of the people of the United States 
that a legislature should have two Houses. 



20 THE LEGISLATIVE DEPARTMENT. [1:1. 

Each Congress exists two years, beginning on the 
Fourth of March at noon, every odd numbered year. 
At that time the term of all the Representatives and of 
one-third of the Senators expires. And at that time 
every other odd year, the term of the President also ex- 
pires. It is usual to refer to the successive Congresses 
by their number. Thus the Congress which existed 
from 1789 to 1791, is called the First Congress, and the 
Congress which existed from 1877 to 1879, is called the 
Forty-fifth Congress. 



I: 2.] THE HOUSIi OF REPRESENTATIVES. 



21 



SECTION 2. 



THE HOUSE OF REPRESENTATIVES. 



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1. Representatives — Chosen by the people. 



2. Qualifications of 
Voters 



1,2,1 



(a.) The same as for voters 

for iState legislature. I, 2, l 

(b.) Put are expected to in- 
clude all adult male 
citizens (except fel- 
ons and traitors) Am. XIV 

(c.) And cannot exclude 

negroes, as such Am. XV* 



Term of office — two years 



4. Qualification of 
' Representatives. 



5. Apportionment of 
Representatives.. 



6. Elections — time — 



fa.} Age— 26 years 

(b.) U. S. citizenship— 7 
years 

(C.) Residence — in State 
from which chosen . . 

(<1.) Mast not hold r. s. 
offices 

(e.) Must not he unrepent- 
ant rebels 

. (f.) Must take oath of office 

(a) Basis of apportion- 

ment — the popula- 
tion — except wild 
Indians 

(b) Census — every ten 

years 

f(a.) 1. Not 
more than 
one for ev- 
ery 80,000. 
(6.) 2. One 
to each 

(.State 

State legisla- 



I, 2,1 

I, 2,2 

I, 2, 8 

I, 2,2 

I, 6, 2 

Am. XIV 
VI, 3 



(c.) Limita- 
tions on 
numbers 



Am. XIV 
I, 2,3 



I, 2,3 
I, 2,3 



'ections — time— ( (a.) Fixed by St 

place and man- < hires 

ner ( (b.) Or by Cong 



Congress. 



7. Vacancies — filled by special elections.... 

8. Privileges of Members. (See Section 6.) 



9. Sole Powers. 



1. To choose officers 

2. To impeach 

3. To originate bills for 

raising revenues 

4. To elect a President — 

when the electors fail 
to elect one 



10. Sej)arat6 Powers. (See Section 5.) 

11. Legislative Powers. (See Sections 7, 8 and 9, also 

Amendments I to X and XIII to XV.) 



I, 4,1 

1, 4, 1 

I, 2,4 



I, 2,3 
I, 2,5 



1,7,1 

Am. XII 



22 THE HOUSE OF REPRESENTATIVES. [1:2,1. 

CLAUSE 1. 

ORGANIZATION. 

The ITouse of Representatives shall be composed of members chosen every 
second year by the people of the several States, and the electors in each 
State shall have the qualifications requisite for electors of the most nu- 
merous branch of the State legislature. 

I. Representatives are chosen by the people. — 
In a free country the people govern. Even in a limited 
monarchy the representatives of the people have some 
voice in the government. In a republic all officers, in 
one sense, are representatives of the people, for they are 
chosen directly or indirectly by the people, and they aro 
responsible to the people. 

But in a special sense the members of the lower house 
of Congress are called Representatives, because they 
specially represent the people. Each Representative is 
chosen to represent the people of his State or district. 
As the people cannot all go to the Capitol and help to 
make laws, certain persons are chosen to do the work 
of legislation for them. It is supposed that each Rep- 
resentative will vote and help to make laws as the peo- 
ple of his State or district wish him to do, and that if 
questions come up on which he has received no instruc- 
tion, he will act according to his best judgment for the 
interests of those who chose him as their Representa- 
tive. 

If each Representative thus represents his State or 
district, then all together will represent the people of 
the United States. If the people of a district are di- 
vided on certain questions, then their Representative 
will usually represent the majority of the people of his 
district. Indeed, he will be chosen over his competitors 
for the very reason that he does represent the majority 



I: 2, l.J ORGANIZATION. 23 

of his district on the leading questions of the day. And 
a majority of the House of Representatives will thus be 
almost certain to represent a majority of the nation on 
all the leading questions of the day. 

II. They are chosen" for a short term of 
office. — Representatives are chosen for two years, so 
that they may be responsible to the people. If a Repre- 
sentative does not truly represent in Congress the peo- 
ple of his district, they need not have him as their Rep- 
resentive longer than two years. Every two years the 
people have an opportunity of choosing Representatives 
anew. If a Representative does truly represent his dis- 
trict, he will probably be re-elected. It is not meant 
that a new person should be chosen every two years; 
but only that the people should have nn opportunity of 
endorsing or of rejecting their Representative every 
two years. 

III. Congressional districts. —The Constitution 
says that Representatives shall be chosen by the people 
of the several States. And it also states how they shall 
be apportioned among the several States. [Clause 3.] 
But the Constitution leaves to each State to decide how 
its Representatives are to be divided among its people. 
The Constitution treats each State as a political unit. 
Each State is to have so many Representatives according 
to its population. But how these Representatives are 
to be apportioned within each State, is left to each State 
legislature to determine. 

As a rule, the state legislatures have divided the States 
into as many Congressional districts as each State has 
Representatives; and the people of each district have 
elected one Representative. 

But in some cases, one or more extra Representatives 
have been elected " at large," that is by the people of 



21 THE HOUSE OF REPRESENTATIVES. [I: 2, 1. 

the whole State. Thus after a new apportionment, in 
which the State of Pennsylvania gained four Repre- 
sentatives, the legislature could not agree on the redis- 
ricting of the State. The result of it was that the old 
districts were left as they had been, and the four extra 
Representatives were elected " at large," or by the peo- 
ple of the whole State. 

If a State chose, it could elect all its Representatives 
on one ticket, and have no districts. But that is so con- 
trary to the political habits of our people that it is not 
likely to be done. 

IV. Qualifications of voters left to the 
states. — When the Constitution says that Representa- 
tives shall be chtfsen by the people of the several States, 
it means by the voters, as representing the people. As 
a fact, not more than one-fourth of the people are actual 
voters. Women and children are not voters in any 
State, and some men in all the States are disqualified 
for various reasons. The voters are supposed to repre- 
sent the people. 

When the Constitution was adopted, the States re- 
quired different qualifications of voters, as they still do. 
The United States establishes no uniform qualification 
for voters, but leaves that matter to the several States. 
Each State, then, in fixing the qualifications required 
of those who vote for the lower house of its legislature, 
also gives the same -persons the right to vote for mem- 
bers of the lower house of Congress. 

V. Two restrictions on state power in deter- 
mining who shall vote. — Two restrictions have since 
been added. By the Fifteenth Amendment negroes can- 
not be forbidden to vote because they are negroes. Any 
reason which would disqualify a white man will also 
disqualify a negro, but no other reason will. This pro- 



1:2,1.] ORGANIZATION. 25 

vision affects elections for Representatives, as it does all 
other elections, State and National. 

And by the Fourteenth Amendment it is provided, 
that where a State excludes any considerable part of its 
inhabitants who are male citizens of the United Stai 
over twenty-one years old, for any cause except crime 
or rebellion, that the number of Representative- bo 
which that State is entitled shall be proportionately 
diminished. This was intended to prevent States from 
disfranchising negroes; but it would also work against 
a property or educational qualification. It virtually 
establishes manhood suffrage throughout the United 
States. No case has ever arisen under this amendment 
by which the representation of a State has been dimin- 
ished. 

VI. Disputed questions. 

1. Ought a Representative to Vote as the Majority of his Con- 
stituents Wish? There are three questions involved, (a) the Legal 
power, {b) the inducements to the Representative, (c) the moral 
right. 

(a) The legal power is plain. Once elected and sworn in, no legal 
power can coerce a Representative to vote, except as he himself 
chooses. He is absolute master of his vote. 

(b) But powerful inducements are put before him to determine 
his vote. There is first his past record, with which he wishes to be 
consistent if possible; and his pledges to his constituents expressed 
or implied in his acceptance of a nomination by a certain party. 
There is, second, his present relations to personal and political 
friends at home, and in Congress, whose friendship he wishes to 
retain, and whose help he expects to ask for in projects of his own. 
This is made veiy powerful by the institution of the caucus. And 
last, but not least, are his hopes for his political future, which will 
depend largely upon his votes in Congress. These inducements 
generally cause Representatives to follow either their party leaders 
or the expressed wish of their constituents. 

(c) But the moral question is a harder one to answer. Usually it 
is the obvious duty of a Representative to vote as the majority in 



26 THE HOUSE OF REPRESENTATIVES. [I: 2, 2. 

his district wish him to vote. Bat there may come occasions when 
he ought to go contrary to his constituents. He ought not to vote 
for injustice or dishonesty because his constituents demand it. Nor 
ought he to vote for anything contrary to the real interests of the 
nation out of a narrow and selfish sectional policy. He is legislat- 
ing not merely for his district, but also for the nation, and above all 
for truth and justice. 

2. Should Eepresentatives be changed Frequently ? It is very 
poor policy for the people of any district to change their Represent- 
atives often or for frivolous reasons. The longer a Representative 
is in Congress, the more influence he gains there. It is almost im- 
possible for a Representative in the first term of his office to do 
more than vote. The real work of Congress is done in the commit- 
tees, and members win their places on important committees by 
long service more than by ability. The longer a district sends a 
man of ability and integrity to Congress, the more influence he, 
and therefore his district, will acquire over the business transacted 
in the House. 

It is one of the sophistical maxims of our politics that ' ' rotation 
in office " is a good thing. It is a good thing for the politicians, 
because it gives more of them a chance to get positions, but it is 
not a good thing for the people, who are worse served thereby. 
Rotation of Representatives is only a good thing where a Represent- 
ative is corrupt or incompetent, or fails to represent his district on 
the great questions of the day. 

CLAUSE 2. 
QUALIFICATIONS OF REPRESENTATIVES. 

No person shall be a Representative who shall not have attained the age of 
twenty-five years, and been seven years a citizen of the United States, 
and who shall not, when elected, be an inhabitant of that State in which 
he shall be chosen. 

I. Age of a representative. — A Representative 
in Congress must be at least twenty-five years old. The 
object of requiring this is to secure a little more matu- 
rity of character and experience of political life than is 
required of a voter. Most of our Representatives are 



1:2,2.] QUALIFICATIONS OF REPRESENTATIVES. 27 

much older than twenty-five. In the British Parlia- 
ment a member of either house must be twenty-one 
years old. The same age is required in most of the 
State legislatures. 

II. Citizenship of a representative. — A Repre- 
sentative in Congress must have been at least seven 
years a citizen of the United States. A natural born 
citizen will of course have been twenty-five years a citi- 
zen, when he reaches the age of twenty-five. But a 
naturalized citizen must have been naturalized at least 
seven years, whatever his age, before he can be a Repre- 
sentative in Congress. 

As the least time under our naturalization laws in 
which a foreigner can become a citizen is live years, it 
follows that the least time in which a foreigner, after 
reaching this country, can become a Representative, is 
five plus seven, or twelve years. The reason for requir- 
ing so long a citizenship is in order that the naturaliz d 
citizen may become familiar with our institutions, and 
outgrow at least in part the political ideas he may have 
brought from another laud. 

III. Residence of representatives. — A Repre- 
sentative must be, when he is elected, a resident of the 
State from which he is chosen. Living in a place con- 
stitutes residence in it. In cases of doubtful residence, 
a person's true residence must be decided by his inten- 
tion as shown by his words and actions. A person may 
have several places in which he lives; but onl} T one of 
them can be his legal residence, for purposes of taxation, 
voting and holding office. 

It is not necessary that a Representative should have 
resided any time in the State from which he is 
elected. But he must be a resident of that State when 
elected. 



28 THE HOUSE OF REPRESENTATIVES. [I: 2, 2. 

But it is not required that a Representative shall be 
a resident of the district from which he is elected. 
Although the usual practice is to elect from each district 
a resident of that district, there have been several cases 
of Representatives being elected who were not residents 
of their districts. 

The reason for requiring residence in the State, is that 
the Representative may be familiar with the local inter- 
ests and needs of his State. The reason for not restrict- 
ing the residence to the district is because the Constitu- 
tion leaves the whole question of the distribution of 
Representatives inside a State, to the State itself. In 
Great Britain no qualification is required in regard to 
residence, and every House of Commons contains many 
members who do not reside in the county or borough 
for which they are elected. The same is the case in 
France. 

IV. D ^qualifications. — The Constitution also pre- 
scribes the following disqualifications: 

1. No person holding any office under the United 
States can be a Member of Congress during his continu- 
ance in office. [I. 6, 2.] 

2. No person who violates an oath to support the 
Constitution by engaging in rebellion against the 
United States, can be a Member of Congress, unless this 
disability is removed. [Amendment XIV, 3.J 

V. Some disputed questions. — The following 
questions have been raised at various times : 

1. Can a State provide Additional qualifications for its Repre- 
sentatives? No; for that would be givmg a single State the right 
to amend the United States Constitution. A State can no more 
add other qualifications tban it can require less. This has been de- 
cided by the House of Representatives, under the powers given it 



I: 2, 2.] QUALIFICATIONS OF REPRESENTATIVES. 29 

by Section 5. Similar cases have been decided the same way by the 
Senate.' 

2. Can a person be elected who is not twenty-five years of < 
Yes; if he becomes twenty five years of age before he take- 
seat. And the House even went so far in one case aa to admit a 
member who was not twenty-five when the first session of the 
House began. He had to wait a few weeks until he was of the re- 
quired age, and then he took his seat. 

8. Can a person be elected a Representative who has not been a 
citizen seven years ? Yes; if he shall have been seven years a citi- 
zen before taking his seat. 

This is on the same principle as the last case. 

4. Can a person be elected a Representative who is not a voter ? 
The letter of the Constitution docs not prescribe any such quali- 
fication. 

No such case has yet arisen. But should a woman ever be elected 
to Congress, or a person who had no property in a State where a 
property qualification is required of voters, we may suppose that the 
House would decide that he or she was not qualified. But it is not 
probable that any person not a voter, will ever be chosen aBi 
tentative. 

5. If a Representative should remove from his State after I 
elected would he lose his seat? No; for the Constitution only 9\ 
fies that he shall be a resident of the State, when elected. 

6. Can an Ambassador be chosen to Congress, while absent from 
the United States ? Yes; for he has not lost his residence in the 
State from which he was appo'nted.* 

7. If an ineligible person receives a majority of votes, docs his 
competitor take his place? No; in that case no one is elected. 
There is a vacancy to be filled by a special election. If A. and B. 
are candidates and A. receives a majority of the votes, but is not 
eligible for the office, he cannot take his seat. But B. was not 
elected, and has no claim upon the place, even if A. is not eligible. 

1 Some recent text books on the Constitution say that this question is still 
in doubt. Congress has repeatedly decided that the Constitution prescribes 
the only qualifications of members, and that no state has a right to require 
additional qualifications. And this was endorsed by the Supreme Court. 
Bailey's Case (CI. and Hall, 411). 

2 A public minister residing at a foreign court does not lose his character 
as an inhabitant ot his State. Baileifs Case (CI. and Hall, 411). 



30 THE HOUSE OF REPRESENTATIVES. [1:2, 3. 

I 

CLAUSE 3. 

APPORTIONMENT OF REPRESENTATIVES. 

■Representatives and direct taxes shall be apportioned among the several 
States which may be included within this Union, according to their 
respective numbers, [which shall be determined by adding to the whole 
number of free persons, including those bound to service for a term of 
years, and] excluding Indians not taxed, [three-fifths of all other per- 
sons]. The actual enumeration shall be made within three years after 
the first meeting of the Congress of the United States, and within every 
subsequent term of ten years, in such manner as they shall by law 
direct. The number of Representatives shall not exceed one for every 
thirty thousand, but each State shall have at least orn Representative; 
[and until such enumeration shall be made, the State of New Hamp- 
shire shall be entitled to choose three, Massachusetts eight, Ehode 
Island and Providence Plantations one, Connecticut five, New York six, 
New Jersey four, Pennsylvania eight, Delaware one, Maryland six, 
Virginia ten, North Carolina five, South Carolina five, and Georgia 
three.] i 

I. THE ARTICLE AS AMENDED BY THE THIRTEENTH 
AND FOURTEENTH AMENDMENTS. — If we should reject 

all obsolete matter, and should change to correspond 
with Amendments XIII and XIV, this clause would 
read as follows : 

"Representatives shall be apportioned among the several States 
according to their respective numbers, counting the whole number 
of persons in each State, excluding Indians not taxed. But when 
the right to vote at any election for the choice of Representatives in 
Congress is denied to any of the male inhabitants of such State 
being twenty-one years of age, and citizens of the United States, 
or in any way abridged, except for participation in rebellion or 
other crimes, the basis of representation shall be reduced in the 
proportion which the number of such male citizens shall bear to the 
whole number of male citizens, twenty-one years of age, in such 
State. The actual enumeration shall be made every ten years, in 
such manner as Congress shall by law direct. The number of Rep- 
resentatives shall not exceed one for every thirty thousand, but each 
.-hall have at least one Representative." 

1 The parts of this Clause in brackets are now obsolete." 



1:2, 3.] APPORTIONMENT OF REPRESENTATIVES. 31 

II. States represented according to popula- 
tion. — As the Representatives are to represent the 
people, it is only fair that the States should have Rep- 
resentatives according to the people who are repre- 
sented. 

The theory of our laws is that every man over twen- 
ty-one represents a family, and that the ex 
where men have no families, or families contain no 
men, are not enough to require a change of the rule. 
And therefore the theory is that the men over twenty- 
one will sufficiently represent the women and children. 

III. Uncivilized Indians and n lvbs. — 
But when the Constitution was adopted, two cl 
were entirely disfranchised, those Indians who had not 
become civilized, and negro slaves. It was ag 

by all that Indians who were civilized should he 
counted as a part of the representative population, as 
they were taxed and subject to the laws of the land. It 
was also agreed that uncivilized Indians should not be 
counted, as the}' neither were taxed nor obeyed the laws. 
But the negro slaves made a more difficult problem. 
They were human beings, and yet the}* were property. 
The slave States naturally wished to count their slaves 
as a part of their representative population, while the 
free States protested against it. A compromise was 
finally- made upon the basis of counting only three- 
fifths of the slaves in the basis of representation. 

It would have been shorter and plainer to have said, 
" According to their respective numbers, excluding In- 
dians not taxed, and including only three-fifths of the 
slaves." But the authors of the Constitution wore 
ashamed to confess the existence of slavery in a free 
country, and hoped it would soon die out. They 
therefore avoided the use of the words " slave " or 



32 THE HOUSE OF REPRESENTATIVES. [I: 2, 3. 

11 slavery " throughout the Constitution, as they made 
it. But these words are used in the amendments 
adopted after the Civil War. The words, ''Persons 
bound to service for a term of years," mean apprentices. 
As they are not slaves, they are to be counted in full. 

Since slavery is abolished, this three-fifths rule is ob- 
solete. The slave States have gained quite a number of 
Representatives in consequence of the abolition of 
slavery. 

In this representative population, the population 
of the Territories and the District of Columbia is not 
counted, because they send no Representatives to Con- 
gress. 

IV. Taxation - on the same basis as repre- 
sentation. — The Revolutionary war had just been 
fought on the cry of " No taxation without representa- 
tion." The authors of this Constitution were therefore 
led to place taxation on the same basis as representation. 

A State could be taxed only because it was repre- 
sented, and only in such proportion as it was rep- 
resented. * 

V. The census. — The process of counting the 
population is called a census. The first census was 
taken in 1790, and one has been taken every ten years 
since. Besides the actual number of inhabitants, a 
great amount of other useful information is gathered 
at each census, and published by the government. 

VI. The number of representatives. — There 
are two limitations upon the number of Representatives: 

1. Each State must have at least one. 

2. There shall not be more than one to every thirty 
thousand of the representative population. 

1 See section 8 for a full discussion of the subject of taxation. 



I: 2, 3.] APPORTIONMENT OF REPRESENTATIVES. 33 

Congress has from time to time fixed a ratio of rep- 
resentation, generally as soon as possible after each 
census. There are now a much less number of Repre- 
sentatives than one to every thirty thousand, or about 
one to every one hundred and thirty thousand. 

If the ratio of representation were still one for every 
thirty thousand, we should have a House of Representa- 
tives containing over thirteen hundred members, a 
number too large to transact legislative business. 

VII. Tereitorial delegates. — Under the Consti- 
tution the House of Representatives is composed of 
members from the States only. But each organized 
territory has been allowed to send a delegate, who has 
no vote, but who can speak on matters affecting the 
interests of his territory. 

VIII. The Growth of the United States. — 
The growth of the United States in population and 
wealth has been one of unexampled rapidity, as the fol- 
lowing table will show: 



Census of. 


Population. 


Ratio of 
representation. 


No. of 

represent- 
atives. 


1790 


3,929,214 

5,308,483 

7,239,881 

9,633,882 

12,866,020 

17,069,453 

23,191,876 

31,443,321 

38,558,371 


33,000 
33,000 
35,000 
40,000 
47,700 
70,680 
93,500 
127,941 
130,533 


105 


1800 


141 


1810 


181 


1820 


212 


1830 


240 


1840 


223 


1850 


234 


I860 


241 


1870 


292 


1880 











The population given is that of the whole United States, not the 
representative population merely. 

The ratio of representation and the number of Representatives is 
that based on the census named. But the House elected under any 
C 



34 THE HOUSE OF REPRESENTATIVES. [I: 2, 5. 

ratio of representation does not begin until three years after the 
census is taken. 

Wealth. — In 1870, the census valuation of all the private property 
of the United States was a little over thirty thousand million dol- 
lars, or on an average of about four thousand dollars to each family. 
As there are few great fortunes in the United States, this shows a 
high average of wealth and comfort among the people. 

CLAUSE 4. 
VACANCIES. 

When vacancies happen in the representation from any State, the executive 
authority thereof shall issue writs of election to fill such vacancies. 

I. How made. — A vacancy may be created (1) by 
death, (2) by resignation, (3) by expulsion, (4) by accept- 
ing an office under the United States, (5) if an ineligible 
person is elected. 

II. How filled. — When a vacancy occurs, the gov- 
ernor of the State from which the vacancy occurs calls 
a special election. To " issue writs of election," does 
not mean that the governor appoints some one to fill 
the vacancy, but only that he calls a special election, 
when the people elect some one to fill the place. The 
power which, can originally elect can also fill a vacancy. 
The person then elected does not serve full two years, 
but only the unexpired part of the term. 

CLAUSE 5. 
SOLE POWERS OF THE HOUSE. 

The nouse of Representatives shall choose their Speaker and other officers, 
and shall have the sole power of impeachment. 

I. Election" of speaker. — The presiding officer of 
the House of Representatives is called the Speaker, in 
imitation of the title of the Speaker of the House of 
Commons. 1 

1 The Speaker of the Uouse of Commons was called thus originally, be- 
cause he was their spokesman in communicating their wishes to the king. 






i: 2, 5.] SOLE POWERS OF THE HOUSE. 35 

The Speaker of the House is one of the members of 
the House, and as such he can vote and speak on all 
questions. But when he takes part in the debates, he 
must call some other person to the chair. He appoints 
all committees, and as legislation is mostly decided in 
the committee work, he has thus a great influence upon 
legislation. The real power of the Speaker is thus only 
second to that of the President. He holds his office at 
the pleasure of the House, hut no instance has occurred 
of a Speaker being removed. Each new Hoi: 
its own Speaker. A Speaker is frequently reelected. 

II. Other officers. — The other officers of the 
House are not members of the House, and are appointed 
and removed at the will of the House. They are a 
Clerk, Sergeant-at-arms, Door-keeper, Postmaster and 
Chaplain. Besides these there are many persona em- 
ployed in various positions about the House. These 
employees are appointed by the Speaker, Clerk. Ser- 
geant-at-arms, Door-keeper or Postmaster, according to 
the nature of their duties. 

III. Power of impeachment. — The House of Piep- 
resentatives has also the power of impeachment, and 
the Senate of trying all impeachments. An impeach- 
ment trial is a political trial of some officer for a polit- 
ical offense, for the sake of removing him from office. 
An impeachment by the House only brings the case 
before the Senate. A committee of the House are 
appointed to conduct the prosecution. The whole sub- 
ject of impeachment will be treated in another place. 

IV. Another sole power. — The House of Repre- 
sentatives also has the sole power of originating bills 
for raising revenue. (See section 7.) 



36 



THE SENATE. 



[1:3. 



SECTION 3. 



THE SENATE. 



Senators 



IIow chosen — by State 
Legislatures 

Numbers — two from each 
State 

Term of office — six years . 

Voting power— one vote 
each 

Classification —into three 
classes; one class to go 
out each year 



I, 3,1 

I, 3, 1 

I, 3,1 

I, 3,1 



Qualifications 
Senators 



Officers 



f (a.) Age— thirty years — 
j (b.) U. S. Citizenship — 

nine years 

(c.) Residence — in State 
of J from which chosen .. 

(d.) Must not hold a U. S. 

office 

(e.) Must not be an unre- 
pentant rebel 

,. (f.) Must take oath of office 



f (a.) President— Vice Pres- 

| ident of the U. S 

\ (b.) President pro tempore 

and other officers 

(. chosen by the Senate 



Vacancies 



Elections . 



f (a.) Filled temporarily, in 
recess of legislature, 

by governor 

(b.) Filled in other cases 

[_ by legislature 

(a.) Time and manner — 
fixed by State legis- 
lature 

(b.) Or by Congress 



I, 3,2 

I, 3,3 

I, 3,3 

I, 3,3 

I, 6,2 

Am. XIV 
VI, 3 

I, 3,4 

I, 3,5 

I, 3,2 
I, 3,3 



I, 4,1 
I, 4,1 



Privileges of Senators. See Section 



Sole powers . 



1. To choose officers, ex- 
cept President 1,3,5 

2. To try all impeachments I, 3, 6 

3. But judgment can only 
extend to removal 
from office and dis- 
qualification for hold- 
ing office I, 3, 7 

4. To elect a Vice Presi- 
dent when the elect- 
ors fail to choose one Am. XII 

5. To confirm certain offi- 
cers nominated by 
the President II, 2, 2 

6. To confirm treaties pro- 
posed by the Presi- 
dent 11,2,2 

t 

Separate powers. (See Section 5.) 

Legislative powers. (See Sections 7, 8, and 9, also Amend- 
ments I to X, and XIII to XV.) 



1: 3, 1.] ORGANIZATION. 37 

CLAUSE 1. 
ORGANIZATION. 

The Senate of the United States shall be composed of two Senators from 
each State, chosen by the legislature thereof, for six yeare; and each 
Senator shall have one vote. 

I. Ttie Senate represents the states. — Aa the 
House of Representativee represents the people, so does 
the Senate represent the States. Under the confedera- 
tion the Delegates to Congress were sent by the St 
and not by the people. But now that a true national 
government was being organized, it was claimed with 
justice that the people should be represented, and not 
the States. But the smaller States refused to part with 
the power they had. At last the compromise was m 
that the House should represent the people and the 
Senate the States. 

II. Equality of representation. — Under the 
confederation each State had one vote; and if the dele- 
gates from any State were equally divided, the State 
lost its vote. A large State had no more voice in the 
affairs of the general government than did a small State. 
As long as these States were each in theory an inde- 
pendent sovereignty, it was fair enough that each 
should have one vote; just as a large man or a small 
man, a rich man or a poor man have each one vote. 
And under this Constitution, as a result of the compro- 
mise which left the Senate to represent the States, each 
State has an equal voice. But instead of giving each 
State one vote, with as many delegates as it pleases, the 
same end is attained in a simpler way by giving each 
State two Senators, and each Senator one vote. Under 
the present plan, if the two Senators from any State 
are opposed upon any question, instead of the State 



38 THE SENATE, [I: 3, 2. 

losing its vote, it lias one vote on each side of that 
question. 

III. How chosen. — As Senators represent States, 
they are chosen by the government of the State, that is 
by the State legislature. (See section 4.) 

This manner of choice also makes the office of Sena- 
tor more dignified than that of Representative, as each 
Senator represents a whole State, while most Repre- 
sentatives represent a part of a State only. 

When a State legislature wishes the Senators and 
Representatives from that State to vote in any particu- 
lar way, it always recognizes the difference between 
Senators and Representatives. The resolution which is 
passed in such a case is always to instruct the Senators 
and request the Representatives. 

IV. Term of office. — The term of office of a Sen- 
ator is six years, three times as long as that of a Rep- 
resentative, and half longer than that of President. 
The object is to raise Senators above the whims and 
caprices of their constituents, so that they may consult 
their solid interests, rather than their immediate wishes. 

A Senator can be re-elected. Thomas Benton repre- 
sented Missouri in the United States Senate for thirty 
years, which is the longest term ever served by one per- 
son in either House of Congress. 

CLAUSE 2. 

CLASSIFICATION AND VACANCIES. 

Immediately after they shall be assembled in consequence of the first elec- 
tion, they shall be divided as equally as may be into three classes. The 
seats of the Senators of the first class shall be vacated at the expiration 
of the second year; of the second class, at the expiration of the fourth 
year, and of tho third class, at the expiration of the sixth year, so that 
one-third may be chosen every second year; and if vacancies happen by 
resignation or otherwise, during the recess of the legislature of any 
State, the executive thereof may make temporary appointments until 
the next meeting of the legislature, which shall then fill such vacancies. 



r: 3, 2.J CLASSIFICATION OF SENATORS. ?/j 

I. Classification of senators. — Senators are so 
classified that one-third of them go out every other year. 
This object is accomplished by the following pro 

1. The first Senate which met in 1789, was divided 
by lot into three classes, as equal as possible, the first 
class to serve two years (till 1791); the second class to 
serve four years (till 1793), and the third class to serve 
six years (till 1795). Care was taken that the two Sen- 
ators from the same State should not be put in the same 
class, so that no state should change both its Sen; 

at the same time. 

2. After the first classification, each class holds for 
six years, and Senators come in and go out with the 
class to which they are elected. 

3. But whenever a new State is admitted to the 
Union, the two new Senators are assigned to the next 
classes in order, so as to keep the classes as nearly equal 
as possible. But the two Senators determine by lot 
between themselves which has the longer and which the 
shorter term, and the length of term of the new Sena- 
tors will depend on the length of time before the class - 
go out to which they are assigned. 

The Senate is thus a permanent body. There are 
always two-thirds, or nearly two-thirds, of the Senators 
in office, while the House every two years is dissolved, 
and must be reorganized. 

II. Vacancies. — A vacancy in the Senate may oc- 
cur for the same reasons as a vacancy in the House. A 
vacancy in the Senate is filled by the State government 
of the State which the Senator represented. — by the 
legislature, if in session, or b}' the governor, if the legis- 
lature is not in session. When the governor appoints, 
the Senator then appointed only holds until the legisla- 
ture can elect. But when the legislature elects, it is 
for the unexpired portion of the term. 



40 THE SENATE. [1:3,4. 

Thus it often happens that a vacancy occurs in the 
Senate, which is filled, first by the appointment of the 
governor for a few months, and then by election by the 
legislature for the rest of the unexpired term. But if 
the vacancy occurs when the legislature is in session, 
the governor cannot appoint a Senator, but the whole 
matter is in the hands of the legislature. 

CLAUSE 3. 

QUALIFICATIONS OP SENATOR. 

No person shall be a Senator, who shall not have attained to the age of 
thirty years, and been nine years a citizen of the United States, and who 
shall not, when elected, be an inhabitant of that State for which he 
shall be chosen. 

The qualifications for senators. — These are placed 
a little higher than for Representatives. They are: 

1. Age — thirty years. 

2. Citizenship of the United States — nine years. 

3. Residence — of the State from which elected. 

Two cases have occurred of ineligibility, Albert Gal- 
latin (born in Switzerland), who was elected from 
Pennsylvania; and Gen. Shields (born in Ireland), who 
was elected from Illinois. 

Both seats were declared vacant by the Senate. But 
Gen. Shields was re-elected as soon as he was eligible. 

The disputed questions about Representatives apply 
also to Senators. (See page 28.) 

CLAUSE 4. 

THE PRESIDENT OF THE SENATE. 

The Vice President of the United States shall be President of the Senate, 
but shall have no vote unless they be equally divided. 

The president of the senate. — In order to give 
the Vice President of the United States something to 
do, he was made President of the Senate. As he is not 



I: 3, 5.] OTHER OFFICERS. 41 

a member of that body, he has no vote, and no right to 
discuss questions. But when the Senate is equally 
divided, he has a casting vote. 

It is often erroneously supposed that the President 
pro tern, of the Senate or the Speaker of the House has 
a casting vote. This is not true. Each of these pre- 
siding officers has one vote as a member of the body 
over which he presides, but no casting vote. If in such 
a case the vote is a tie, it is lost, as it requires a majority 
to carry a vote, and a tie lacks one vote of a majority. 

The Vice President can appoint no committees in the 
Senate, because he is not elected by the Senate, and 
does not represent them as the Speaker does the House. 
The Senate elects its own committees. 

The Vice President of the United States when acting 
President of the Senate, is simply a presiding officer. 
He puts motions, preserves order, and decides questions 
of order, subject to an appeal to the Senate, but cannot 
debate or vote (except the casting vote). 

CLAUSE 5. 

OTHER OFFICERS. 

The Senate shall choose their other officers, and also a President pro (cm- 
pore in the absence of the Vice President, or >vhen he shall exercise the 
office of President of the United States. 

Other officers of the senate. — The other 
officers of the Senate are the same as in the House, and 
are appointed and removed by the Senate at pleasure. 
In the absence of the Vice President, or when he acts 
as President, the Senate elect one of their own number 
as President pro tempore, that is temporary President. 
The custom of the Senate is to elect a President pro 
tempore the first day of each session, who presides when- 
ever the Vice President is absent. Whenever the office 



42 THE SENATE. [1: 3, G. 

of Vice President of the United States becomes vacant 
by death, resignation, removal or promotion to the 
office of President, the President pro tempore becomes 
President of the Senate, but he is not Vice President of 
the United States, though often erroneously called so. 
The President of the Senate pro tempore, when act- 
ing in place of the Vice President of the United States 
as President of the Senate, has the same duties as pre- 
siding officer, but he has not the privilege of the cast- 
ing vote, and has the privilege of his own vote as Sen- 
ator on all questions. He has also the privilege of 
speaking on any question, by calling some other Sena- 
tor to the chair. Except in the appointment of com- 
mittees, he has the same duties as the Speaker of the 
House. 

CLAUSES 6 AND 7. 

IMPEACHMENT. 

The Senate shall have the sole power to try all impeachments. When sit- 
ting for that purpose, they shall be on oath or affirmation. When the 
President of the United States is tried, the Chief Justice shall preside; 
and no person shall be convicted without the concurrence of two-thirds 
of the members present. 

Judgment in cases of impeachment shall not extend further than to removal 
from office, and disqualification to hold and enjoy any office of honor, 
trust or profit under the United States; but the party convicted shall 
nevertheless be liable and subject to indictment, trial, judgment and 
punishment, according to law. 1 

I. The high court of impeachment. — As the 
House of Representatives alone impeaches, the Senate 
alone tries all cases of impeachment. In an impeach- 
ment trial the Senate sits as a High Court of Impeach- 
ment, and acts in a judicial capacity. Senators are 
therefore in such a case put upon oath or affirmation to 
try the case justly. A majority of two-thirds is needed 

1 See comments on Article II, section 4 (page 199). 



1 : 3, 7.] IMPEACHMENT. 43 

to convict. When the President of the United States 
is tried, the Vice President or the President p-o tempore 
of the Senate might be interested to have him con- 
victed, in order to succeed to the place of President. It 
is therefore provided that when the President of the 
United States is tried, the Chief Justice shall preside. 

II. Judgment in cases of impeachment. — As an 
impeachment trial is a political, and not a criminal trial, 
the punishment is a political, not a criminal one. Con- 
viction on impeachment carries with it removal from 
office; and the officer convicted may also ba declared dis- 
qualified from ever holding a United States office again. 

If the offense is a criminal one as well as a political 
one,, the political trial will not prevent a criminal trial 
also. 



u 



ELECTIONS AND SESSIONS. 



[1:4,1. 



SECTION 4. 



ELECTIONS AND SESSIONS. 



Elections to 
Congress. 



II. Sessions op 
Congress. 



(a.) Time, place and manner prescribed by 

State legislature 1,4,1 

(b.) But may be altered by Congress 1,4,1 

(c.) Except as to place of choosing Senators. I, 4, 1 

(a.) Sessions annual I, 4, 2 

(b.) Begin on first Monday of December I, 4, 2 

(c.) Unless another day is fixed bylaw I, 4,2 

(d.) Special sessions may be called by the 

President II, 3 



CLAUSE 1. 



ELECTIONS TO CONGRESS. 



The times, places, and manner of holding elections for Senators and Repre- 
sentatives shall be prescribed in each State by the legislature thereof; 
but the Congress may at any time by law make or alter such regulations, 
except as to the places of choosing Senators. 



I. The constitutional provisions. — The Consti- 
tution provides in relation to election of Senators and 
Representatives, 

1. That each State may prescribe the time and place 
and manner of holding elections for Senators and Rep- 
resentatives; 

2. But that Congress may assume control over a part 
or all of the subject, at any time; 

3. But Congress is forbidden to prescribe the place of 
choosing Senators. As these are chosen by the State 
legislatures, it is wise to forbid Congress to prescribe 
where the election shall be held. Otherwise, Congress 
might prescribe that Senators should be chosen at some 
other place than the State capitol, or even outside of 
the State altogether. 



I: 4, 1.] ELECTIONS TO CONGRESS. 45 

When Congress has made any regulations relating to 
time, place and manner of choosing Senators or Repre- 
sentatives, that supersedes any State law. But, so far 
as Congress has not prescribed any of these things, the 
State laws govern it. 

II. Provisions made by congress. — For a long 
time Congress left this whole matter to the several 
States, and the greatest variety prevailed. A part of 
the States elected Representatives in the spring, a part 
in October, and a part in November. A part of the 
States elected by ballot and a part by viva voce vote. 

Recently Congress has by law prescribed certain 
things in relation to the time and manner of these elec- 
tions, leaving other questions still open. The elections 
of United States Senators have been fully provided for 
by act of Congress; the regulations respecting the elec- 
tion of Representatives are not so minute. Both are 
given below. 

III. Election of senators. — Senators are chosen 
as follows: 

The last session of a legislature before the term of a Senator from 
that State expires is the time; and the day is the second Tuesday 
after the legislature has met and organized; the place, of course, 
is the capitol of the State, except when in time of public danger 
the legislature is called to meet at some other place. Each house 
first votes separately Joy a viva voce vote. Next day a joint conven- 
tion of both houses is held, when the result in each house is read. 
If the same person has a majority of all the votes in each house, he 
is declared elected. But if no one has such a majority of each house 
of the legislature, the members of both houses in joint convention 
immediately proceed to vote for Senator. They must meet in joint 
convention and vote at least once each day until a Senator is elected. 
All votes must be viva voce, that is, as the roll is called each mem- 
ber of the legislature must rise in his place and name the person he 
votes for. A majority of all the votes cast is required to elect. 

In case of a vacancy, the legislature proceeds to fill the vacancy 
in the same way, on the second Tuesday of the session after the 



46 ELECTIONS AND SESSIONS. [1: 4, 2. 

vacancy occurs; or if the legislature is in session when the vacancy 
occurs, on the second Tuesday after it is notified of the vacancy. 

IV. Election of representatives. 

Representatives must be elected from districts of contiguous terri- 
tory on the Tuesday after the first Monday of November in 1876, 
and every two years thereafter. Vacancies are filled by a special 
election called by the Governor. All votes must be by ballot. In 
a few States which find it difficult to change their State constitu- 
tion, Congress has suspended the operation of this law, but as soon 
as possible all the States must arrange to hold their election for 
Representatives and for Presidential Electors on the Tuesday after 
the first Monday of November. 

CLAUSE 2. 
SESSIONS OF CONGRESS. 

The Congress shall assemble at least once in every year, and such meeting 
shall be on the first Monday in December, unless they shall by law ap- 
point a different day. 

I. When congress meets. — Congress must meet 
at least once each year. As a Congress lasts two years, 
each Congress lias at least two sessions, and may have 
more. 

The regular sessions of Congress begin on the first 
Monday of December each year. 1 The first regular ses- 
sion of Congress lasts until the adjournment some time 
in the next summer, and is called the long session. The 
second regular session lasts until the fourth of March, 
at noon, when the terms of office of all the Representa- 
tives and of one-third the Senators expire. This is 
therefore called the short session. 

A special session may be called by the President for 
extraordinary reasons. (II, 3.) 

A session of Congress may be ended in one of three 
ways: 

1 For a few years Congress had three sessions, the first beginning on the 
fourth of March, and the other two on the first Monday of December. 



I: 4, 2.J SESSIONS OF CONGRESS. 47 

1. The two Houses may agree to adjourn. 

2. The term for which all the Representatives and 
one-third of the Senators were elected may expire. This 
happens every odd year on the fourth of March. 

3. In case the two Houses disagree in respect to the 
time of adjournment, the President can adjourn them. 
This case has never occurred, but it is provided for in 
the Constitution. (II, 3.) 

II. Where congress meets. — The Constitution 
does not fix the place where Congress shall meet. But 
the place now provided is the Capitol at Washington. 
But when, in case of invasion or contagious disease, it 
would be unsafe for Congress to meet at Washington, 
the President is authorized by law to convoke Cong 

at some other place. Or Congress, when in session, has 
the right to adjourn to meet at some other place, if it 
so chooses. But since the seat of government was 
established at Washington, Congress has always met 
there. 1 

III. The organization of congress. 

On the fourth of March, at noon, every odd year, one Congress 

closes its existence, and a new Congress begins. The entire House 

' of Representatives goes out of office, those members who have 

been re-elected as well as those who are elected for the first time. 

One-third of the Senate also goes out of office. 

As the Senate is a permanent body, it does not need to reorganize 
when it meets. The Vice President takes his place as President of 
the Senate, or, if he is absent, a President pro tempore is chosen, 
the new members are sworn in, and the Senate is ready for 
business. If there are two claimants for a seat, neither is sworn in 
till the case is decided by the Senate, when the one whom the Sen- 
ate decides to have been lawfully elected is sworn in. 

*The Continental Congress met in the following places: Philadelphia, 
1774-76; Baltimore, 1770; Philadelphia, 1777; Lancaster and York, 1777; 
Philadelphia, 1778-83; Princeton, 1783; Annapolis, 1783; Trenton, 17S4; 
New York, 1785-9. The Constitutional Convention was held at Philadel- 
phia in 1787, this Constitution was ratified in 178S, and went into effect in 
1789. The seat of government since then has been: New York, 1789-1790; 
Philadelphia, 1790-1800; Washington, 1800 to the present time. 



48 ELECTIONS AND SESSIONS. [1:4, 2. 

But when a new House of Representative meets, the scene is 
different. The Clerk of the last House makes out the roll of the 
members who hold certificates of election, who are sworn in, and 
who then proceed to elect a Speaker. Sometimes this is done at 
once; but sometimes, when parties are closely balanced, it takes 
weeks, and even months, to elect a Speaker. Until that is done, 
the House can do no business, and has no legal organization. But 
as soon as a Speaker and other officers are elected, the House is 
organized and ready for business. 

In case there are two claimants for a seat, the Clerk puts upon 
the roll the name of the one who has a certificate of election from 
the proper state authorities, who therefore votes in the election of 
officers. But it often happens that when the contest for the seat is 
decided by the House, the sitting member is ousted and his oppo- 
nent is seated. It is usual to vote a salary and expenses of contest 
to both claimants. Thus it is sometimes a good thing to be a 
defeated candidate for Congress. 



I: 5, 1.] POWERS OF EACH HOUSE SEPARATELY. 49 



SECTION 5. 



POWERS OF EACH HOUSE SEPARATELY. 



II. Quorum 



I. Judge of Elections, Returns and Qualifications 

of its mem ben I, 5, 1 

(a.) A majority ordinarily 1,5,1 

(b.) For election of President, two- 
thirds of the States Vm. XII 

11. Adjourn from-) 
day to day. .. | . _ 
bcr can.... | 2. Compel abecn- i 
^ tees to attend J 



(a.) Make rules 1,5,2 

(b.) Punish a violation of these by 

members I. "2 

(c.) Expel a member by two-thirds 

vote I* 5*1 

(d.) Punish other persons for con- 
tempt (common law). 

r (a.) Keep a journal 1,3,3 

(b.) Publish it, except what requires 

secrecy I, 5, 3 

(c.) Yeas and Nays, on call of one- 
filth present 1,5,3 



III. Discipline 



IY. Publicity 



(a.) Both Houses can adjourn at any 

time (implied) 

Y. Adjournment. -I (b.) One House can adjourn for three 

days or less I. 5. 4 

i. (c.) But not to a different place I, 5, 4 



CLAUSE 1. (Part First.) 



JUDGE OF ELECTIONS. 



Each House shall be the judge of the elections, returns, and qualifica- 
tions of its own members, and a majority of each shall constitute 
a quorum to do business; but a smaller number may adjourn from 
day to day, and may be authorized to compel the attendance of absent 
members, in such manner and under such penalties, as each House may 
provide. 

I. Each house the judge of elections, re- 
turns and qualifications. — In Parliament and in 



50 POWERS OF EACH HOUSE SEPARATELY. [I: 5, 1. 

the State legislatures when this Constitution was 
adopted, each House was the judge of the elections, re- 
turns and qualifications of its own members. Conse- 
quently the same power was given to each House of 
Congress. 

When it is said that each House shall be a judge of 
the elections and returns of its members, it is meant that 
each House has the power to decide whether a member 
was lawfully elected or not, or of two persons both 
claiming to be elected, to decide which one is justly 
entitled to the seat. 

When it is said that each House shall be a judge of 
the qualifications of its members, it is meant that each 
House has the power to decide whether any particular 
member has the qualifications required under the Con- 
stitution. (See sections 2 and 3.) 

Taken together, these powers give each House of 
Congress power to decide who are its members and who 
are not. The decision of each House is final and can- 
not be reviewed by the other House or by the courts. 

II. The pkocess of deciding contested elections. 

After each election for Representative, the proper officers in each 
State canvass the votes actually cast and decide which of the can- 
didates are elected. A certificate of election is then given by the 
Governor or Secretary of State to the candidate who has the largest 
number of votes, as decided by the canvassing officers. 

Should the defeated candidate claim that he was rightfully 
elected, and was cheated out of it by some fraud or mistake in the 
election or in counting the returns of the election, he can appeal to 
the House of Ptcpresentatives, who will decide his case upon the 
merits. But meanwhile the person who has the certificate of elec- 
tion, takes the seat and votes. 

The process of contesting an election is now specified by law. 
Within thirty days after the result of the election has been declared, 
the defeated candidate must give notice to the successful candidate 
that he will contest his election and specify the grounds upon which 



1: 5, 1.] JUDGE OF ELECTIONS. 51 

he will contest it. Within thirty days after that the successful 
candidate must reply, stating the grounds upon which he relii 
support his case. The case then goes before some judge, who I 
all the testimony brought by both sides and their written - 
and forwards them to the clerk of the House of Represents! 

As soon as the House is organized, the Speaker appoints, with 
other committees, a committee on Elections. All i 
are referred to this committee, who examine the evidence .sent them, 
and hear the arguments of lawyers on each side, and then report to 
the House which of the two claimant? is entitled to the seat. 

The House then votes on the report, and decides which candidate 
was lawfully elected. Iu deciding this question, the committee on 
Elections and the House go back of the returns, and decide on the 
evidence presented, whether any illegal votes were cast, whether 
any mistakes were made in making out the returns, and so on, 
and then aim to decide according to the real wish of the people of 
the district without regard to legal technicalities. 

The process of deciding a contested election in the Senate is sim- 
pler. The question goes directly to the committee on Elections, 
and by them is reported to the Senate, who decide, as in the 1 1 
of Representatives. 

But the power to decide contested election cases has proved a 
dangerous power in the hands of a partisan majority. Which 
party has the majority, is very apt to decide contested elections in 
favor of it 3 own side, rather than in favor of justice. 

When the question is one of qualification, it goes to the commit- 
tee on Elections and then to the House. But in such a case there 
is no contest. For to prove a member elect to be disqualified, does 
not seat his opponent; but only creates a vacancy to be filled in the 
regular way. 

III. Recognition of states. 

Incidental to the question of qualification is the question whether 
the State from which the Senator or Representative comes accred- 
ited is a State in the Union or not. 

If either House does not recognize a State as a State in the Union, 
it of course refuses to receive the members from that State. 

When a new State is received into the Union, its formal recogni- 
tion as a State is made by receiving its Senators and Representa- 
tives into the Senate and House. When the conquered rebel States 
were received back into the Union, it was by receiving their Sena- 
tors and Representatives into Congress. 



52 POWERS OF EACH HOUSE SEPARATELY. [I: 5, 1. 

It follows from this that a State may be recognized by one House 
and not by the other. But the two Houses have always tried to 
work in harmony on this question. 

CLAUSE 1. (Second Part.) 
QUORUM. 

IV. What is a quorum? — A quorum is a sufficient 
number to do business legally. 

In a large body like either House of Congress, it is 
plain that it would not do to require all the members 
to be present before any business can be done. It would 
be very difficult to have all attend any one day. And yet 
it would not be fair for a few members to do business in 
the absence of the rest, whose votes would perhaps have 
decided the business in a different way. Some number 
must be fixed as a quorum. 

The Constitution fixes that number at a majority. 

But when the House of Representatives is called on 
to choose a President, a quorum for that purpose con- 
sists of a member or members from two-thirds of the 
States (Am. XII). 

V. Powers of a less number. — But it often hap- 
pens that a majority are not present to do business. 
And it has sometimes happened that a number of mem- 
bers absent themselves purposely to prevent business 
being done. 

Two powers are therefore given to a less number than 
a quorum: 

1. They may adjourn till the next day, and so on day 
after day, till a quorum is present. 

2. Or they may compel the attendance of absent mem- 
bers, in accordance with the rules already fixed by the 
House. 

Under the rules of the House of Representatives, no 






1:5,2.] DISCIPLINE. 53 

member has a right to stay away from a session of the 
House, unless he is excused or is sick. Absentees, who 
are not excused or sick, can be arrested by special i 
senger and brought into the House. By the rule-. 
fifteen members, including the Speaker, can compel the 
attendance of absent members. 

VI. Pairs. 

If a member is absent on an important vote, his party will 
his vote. In order to obviate this evil, there is an understanding 
among the members of both parties, that if a member must be 
absent, he can agree .with tome member of the other part}- bo 
with him. The member who is absent cannot vote, and the mem- 
ber who is paired with him is allowed by the courtesy of the li 
not to vote. The result is the same, as if both were present and 
voted on opposite sides. 

CLAUSE 2. 

DISCIPLINE. 

Each House may determine the rules of its proceedings, punish its memben 
for disorderly behavior, and with the concurrence of two-thirds, expel a 
member. 

I. Rules of each house. — The rules adopted are 
the general code of Parliamentary practice, with some 
special changes and additions to suit the circumstances 
of each House. The rules of Parliamentary practice, as 
they are called, grew up in the growth of the English 
Parliament, and have now been adopted with slight 
changes by all deliberative bodies where the English 
language is spoken. 1 Under this section, either the 
Senate or House of Representatives can alter any of 
these rules or make new ones for itself, whenever it 
chooses. And the rules of the two Houses need not be 
the same. Each House makes its own rules. Of course 

J The usual Parliamentary rules can be found in any good manual like 
Robert's Hulcs of Order, Cus'hing's Manual, or Jefferson** Manual. The rales 
of the Senate and House of Representatives are published each year in the 
Manual of Congress. 



54 POWERS OF EACH HOUSE SEPARATELY. [I: 5, 2. 

the rules must be subject to the Constitution. Thus, a 
rule making a greater or less number than a majority a 
quorum would be unconstitutional. 

II. Power to punish its owjs" members. — Eules 
would be of no use, unless there were some power to 
enforce them, and to punish for disobedience. There- 
fore, each House has the right, not only to make the 
rules for its own proceedings, but to punish those who 
violate those rules. The offenses which may be pun- 
ished are not exactly defined, nor are the kind of pun- 
ishments; but the punishments for members are usually 
reprimand or fine, and in extreme cases expulsion. For 
expulsion, a two-thirds vote is needed. A large discre- 
tion is thus given to either House, which might be 
abused, but is not likely to be. 

The power over members is not limited to offenses 
committed by members in their capacity as members, or 
during the session of Congress. But a member may be 
punished for any disorderly or unparliamentary action, 
or for any conduct which renders him unfit to be a 
member. 1 

As Senators or Representatives cannot be impeached 
or removed in any other way or by any other power, 
this power of expulsion is the only safeguard against 
unworthy members. 

III. Power to puxish persons ^ot members. — 
Besides this power over its own members, each House 

1 In July, 1797, William Blonnt was expelled from the Senate for a high 
misdemeanor entirely inconsistent with his public trust and duty as a Sen- 
ator. "The offense charged against him was an attempt to seduce an Amer- 
ican agent among the Indians from hie duty and to alienate the affection and 
confidence of the Indians from the public authorities of the United States, 
and a negotiation for services in behalf of the British government among 
the Indians. It was not a statutory offense, nor was it committed during the 
■ a of Congress, nor at the seat of government. Yet by an almost unan- 
imous vole, he was expelled /rom that body." (Story, 838.) A Representa- 
tive from South Carolina was expelled for receiving money for appointing a 
en .let to West Point, and other members have been expelled lor various 
offmses. 



1:5,3.] PUBLICITY. 55 

has the power to punish other persons for a breach of 
its privileges, for disorderly conduct, or for contempt. 
No such power is expressly given by the Constitution. 
But it is a principle of the common law, that the power 
to preserve order and to punish for contempt belongs to 
courts of law and to legislative bodies. The power of 
cither House to punish for contempt or disorderly 
behavior, is limited to reprimand, fine, or imprisonment, 
and to the session of Congress at which the often- 
committed. 1 
IV. Some disputed questions. 

1. Can a member be punished for an offense committed before he 
became a member ? Probably not; the decisions have thus far I 

to that effect. And the House of Representatives has gone so far 
as to decide that it could not even punish a member for corrupt 
conduct in a previous term. But these decisions do not leg-ally bind 
future Houses, and a flag-rant case may arise sometime which wfll 
lead to an opposite decision. 

2. Can either House imprison a person not a member ? Yes; bat 
only during the session. When the session of Congress closes the 
prisoner must be released. The imprisonment in such cases is in 
one of the committee rooms, under guard of the Sergeant-at-Arms 
or one of his subordinates. 

CLAUSE 3. 

PUBLICITY. 

Each House shall keep a journal of its proceedings, and from time to time 
publish the same, excepting such parts as may in their judgment require 
secrecy, and the yeas and nays of the members of either Hoihc on any 
question shall, at the desire of one-fifth of those present, be entered on 
the journal. 

I. The value of publicity. — In a popular gov- 
ernment like ours, the people ought to he able to know 

1 The Supreme Court has repeatedly decided, that either House may pun- 
ish persons not members for a breach of the privileges of the House, and 
that there is no appeal from the decision. Persons have actually been pun- 
ished for the following offenses: An attempt to corrupt a "member; a 
challenge sent a member to fight a duel; a printed libel on the Senate: an 
assault upon a member for words spoken in debate; refusal to testify before 
a committee of investigation. 



56 POWERS OF EACH HOUSE SEPARATELY. [I: 5, 3. 

what their representatives are doing. It is a good to 
the legislators and it is a good to the people. The 
members of Congress need publicity, to check them in 
corrupt or unwise conduct, by the condemnation of the 
people. They also need it to secure public applause for 
any ability they may show in advocating or carrying 
through wise measures. The people need publicity in 
the proceedings of Congress, so that they may know 
whether their representatives are worthy of re-election, 
and they also need to read the discussions and votes in 
Congress for their own education in political questions. 

II. How publicity is secured. — Publicity of the 
proceedings in Congress is secured by the Constitution 
in two ways: 

1. By keeping and publishing a journal of their pro- 
ceedings. 

2. By recording the vote of each member, when one- 
fifth of those present call for it. 

Besides these ways, publicity is effectually secured in 
three other ways: 

1. Spectators are admitted to the proceedings. Gal- 
leries are built expressly for the public, and certain dis- 
tinguished persons are admitted to the floor of each 
House. Among these are the President and Vice Pres- 
ident, Cabinet officers, the members of the other House, 
U. S. Judges, State Governors, the chief officers of the 
Army and Navy, and foreign ambassadors. 

2. The reporters of newspapers are admitted, and are 
furnished every facility for reporting the proceedings in 
full. By the aid of the telegraph, the proceedings of 
each day in Congress are now printed the next morning 
in all the leading newspapers, which in the course of 
that day reach almost every village in the land. These 
reports are often fuller and more correct than the 



1: 5, 3.] PUBLICITY. 57 

official report. Hundreds of thousands of voters read 
them with the closest interest. 

3. Members are in the habit of having their speeches 
printed and sent to everybody who is likely to take an 
interest in them. 

III. Publishing the jourxal. — The journal of 
the proceedings of each House is kept by Clerks, and is 
printed and laid on the desk of each officer and member 
of each House the next morning. It is published in 
volumes in the Congressional Globe. 

Those parts which require secrecy are not publis] 
The House of Representatives usually has no secret 
sessions, and the Senate only when it does business 
which it shares with the President, hence called ex< 
Hue business. Such sessions are called executive s 

Executive business is of two kinds: the confirmation 
or rejection of appointments to office, and the confir- 
mation or rejection of treaties. It is obvious that se- 
crecy is proper in both of these cases. When the 
Senate goes into executive session, all persons are shut 
out except the Vice President, the Senators and a few 
trusty officers, who are sworn to secrecy. Yet the re- 
porters for the press generally manage to find out and 
publish what was done in executive sessions, in spite of 
all these precautions. 

The case might arise, that would require both Houses 
to go into secret sessions; but it would be a very extra- 
ordinary case indeed, such as the question of a great 
foreign war, or the insanity of the President. 

IV. Methods of voting in congress. — There are 
three ways of voting in Congress. 

1. By acclamation. The presiding officer puts the 
question, and all who are in favor of it say " aye," then 
after a pause, all who are opposed say " no." If they 



58 POWERS OF EACH HOUSE SEPARATELY. [I: 5, 3. 

are nearly all one way or the other, it is easy to decide, 
and time is saved. 

2. If the vote by acclamation is nearly balanced, 
the presiding officer either says he cannot decide, or 
some one calls for a division of the House, when a ris- 
ing vote is taken, and the members are counted. If this 
is not satisfactory, a call may be made for tellers. The 
presiding officer then appoints two tellers, who take 
their position in front of the speaker, and the members, 
first those in the affirmative, then those in the negative, 
pass between the tellers and are counted by them. 

3. But in important questions, where a record of each 
member's vote is wished, the ayes and noes (or yeas 
and nays) are called for. The method of calling for 
them is thus: Some member addresses the chair, and 
says, " I call for the ayes and noes," the chair then says, 
" Is the call sustained ?" All those rise who are in favor 
of the call, and if there are one-fifth of all present, the 
call is sustained; the roll is then called and each mem- 
ber's vote is recorded. 

V. The object of calling the yeas and nays. — 
The object of calling the yeas and nays is to make an 
official record of each member's vote, so that his con- 
stituents and the country generally may know how he 
voted. When such record is made, members are apt to 
be more careful how they vote. At least one-fifth of 
those present must call for the yeas and nays, because 
to call the roll of members takes a long time, and if one 
or two members could compel such a call, business 
would be constantly delayed. But on the other hand, 
if it required a majority vote to record the ayes and nays, 
a corrupt majority could easily refuse to record their 
votes, and thus rush through bad measures without any 
check. As it is, one-fifth of the members can always 



I:. 5, 4.] ADJOURNMENT. 50 

compel a call of the yeas and nays, and thus make each 
member give his vote in such a way that the responsi- 
bility for it can be proved upon him. 

As it is, this power of calling for the yeafl and nay 
often used by the minority to stave off a measure which 
they cannot prevent by a direct vote. Thus when a bill 
is before the House whose passage the minority are 
anxious to hinder as long as they can, they will make 
what are called t; dilatory motions," that is they will 
move to adjourn., to lay the bill on the table, to refer it 
to one of the standing committees, to refer it to a special 
committee, or to amend it in various ways, and on all 
these motions will call for the yeas and nays, besides 
having the right to make speeches on most of them. 
By these expedients the passage of any bill may be de- 
layed for several days. 

CLAUSE 4. 

ADJOURNMENT. 

Is cither House, during the session of Congress, shall, without the consent of 
the other, adjourn for more than three days, nor to any other place than 
that in which the two Houses shall he sitting. 

Adjournment. — If either House could adjourn to any 
time or place, without the consent of the other, it might 
cause a great deal of trouble and inconvenience, which 
is prevented by this clause. 

The two Houses must be in session at the same time 
and place. Only one exception is allowed. 

Either House may adjourn for three da}*s or less with- 
out asking the consent of the other. This is to allow 
for Sundays and holidays, and other special occasions. 

In case the two Houses cannot agree upon the time 
of adjournment, the President has the power to adjourn 
them to any time he may think proper (II, 3). This 
power has never been exercised. 



60 



POWERS OF MEMBERS. 



[1:6,1. 



SECTION 6. 

POWERS OF MEMBERS. 



I. Privileges < 



II. Res trio ^ 

TIOXS.... 



f (a.) Fixed by law I, 

1. Salary... -j (b.) Paid from the U. S. 

I. Treasury I, 



2. From ar- 
rest. . . 



(a.) During session and 
going and return- 
ing I, 

j (b.) Except for treason, 
felony, and breach 

L of the peace I, 

r (a.) For speeches in the 

House I, 

(b.) Can be punished by 

the House. I, 

I (c ) But by no other 
L power I, 

1. Cannot hold U. S. office I, 

2. Cannot be appointed to an office cre- 

ated or made more valuable for his 
sake I, 

3. Cannot be Presidential elector II, 



3. Of Speech 



6,1 

6,1 

6,1 

6 1 

6,1 

6,1 

6,1 

6,2 



6,2 
1,2 



CLAUSE 1. 



PRIVILEGES OF MEMBERS. 

The Senators and Representatives shall receive a compensation for their 
services, to be ascertained by law, and paid out of the Treasury of the 
United States. They shall in all cases except treason, felony and breach 
of the peace, be privileged from arrest during their attendance at the 
session of their respective Houses, and in going to and returning from 
the same; and for any speech or debate in either House, they shall not 
be questioned in any other place. 

I. Salary paid by the United States. — In En- 
gland members of Parliament are not paid. Under the 
Confederation, the delegates were paid by the States 
that sent them. Members of Congress are paid for their 



1: 6, 1.] PRIVILEGES OF MEMBERS. 61 

services, so that poor men can afford to go to Congress; 
and they are paid by the United States, so that their 
pay shall be equal, and that they may he independent 
of dictation by their State legislatures. Besides, they 
act for the whole United States, and not for their own 
State only, and therefore it is fair that they be paid by^ 
the United States. 

The pay of Senators and Representatives was origi- 
nally six dollars a day for each day's service, and six dol- 
lars for every twenty miles of travel to and from the 
seat of government. It is now fixed at 85,000 a year, 
and twenty cents a mile for traveling expenses. The 
Speaker of the House receives $8,000 a year, and the 
President pro tempore of the Senate the same, when he 
acts as President of the Senate. 

Congress fixes the salaries of its own members. Sev- 
eral times a Congress has raised the salaries of its mem- 
bers, not only for the rest of its term, but has made the 
increase apply back to the beginning of its term. 

There is nothing in the Constitution to prevent 
this, although it is evidently unjust. An amendment 
was proposed in 1789, which, if it had been adopted, 
would have prevented these "back salary grabs' ' (see 
page 251). 

II. Privilege from arrest. — The privilege of 
members of Congress from arrest is common to all 
legislative bodies, here and in Europe, and for the same 
reason, that their constituents may not be defrauded of 
their voices and votes for any frivolous reason. This 
freedom from arrest does not cover: 

1. Arrest on the charge of treason. 

2. Arrest on the charge of a felony, that is, any crime 
which is punishable by death or imprisonment in a 
penitentiary. 



62 POWERS OF MEMBERS. [1: 6, 1. 

3. Arrest for breach of the peace, that is, any act that 
disturbs public order, such as assault and battery. 
But it does cover: 

1. Arrest for any misdemeanor, except breach of the 
peace. 

2. Service of any civil process, such as a suit for debt, 
a subpoena as a witness, or a summons to serve on a 

jury- 

This privilege from arrest covers the time of the ses- 
sion, and the time necessary to go to Washington before 
the session and to return after it. It is not necessary 
for a member to be sworn in before enjoying this privi- 
lege, otherwise he might be arrested when going to the 
first session in order to be sworn in, and thus be pre- 
vented from taking his seat at the proper time. 

III. Freedom of debate. — The privilege of free- 
dom of speech is given to members of Congress. 

This freedom differs from the freedom of speech out- 
side of Congress, granted to all citizens by Amendment 
II, in giving freedom from libel suits, as well as all 
other freedom of speech. 

Members are privileged from arrest for words spoken 
in debate. For indecent or libelous words spoken in 
debate they may be punished by their own House, but 
not by any court of law. As the debates in Congress 
are always printed, this privilege extends to their official 
publication. But it does not extend to their publica- 
tion in any other way. A member is free to speak a 
libel on the floor of the House to which he belongs, if 
the House allows it, and is not liable for its official 
publication. But if he or any one else publishes such 
a libel in any other form, it is not protected by this 
privilege. 



1: 6, 2.] RESTRICTIONS ON MEMBERS. G3 

CLAUSE 2. 
RESTRICTIONS ON MEMBERS. 

No Senator or Representative shall, during the time for which he was 
elected, be appointed to any civil office under the authority of the United 
States, which shall have been created, or the emoluments whereof lhall 
have been increased during such time; and no person holding any office 
under the United States, shall be a member of either House during his 
continuance in office. 

I. What this clause does not prohibit. — This 
clause is remarkable rather for what it does not pro- 
hibit than for what it does. 

1. It does not prohibit an officer of the United Stal 
from being elected to Congress and holding his office 
till he is ready to take his seat in Congress. 

2. It does not prohibit a member of Congress from 
being appointed to a military office, which was created 
or the salary of which was increased for his special 
benefit. 

3. It does not prohibit a member of Congress being 
appointed as soon as his term is out to an office which 
was created, or the salary of which was increased for 
his benefit, perhaps only a few days before. 

4. It does not prevent a member of Congress securing 
the appointment of a relative or intimate friend to an 
office, which was created or the salary of which was in- 
creased for his benefit. 

5. It does not prohibit a member of Congress from 
resigning his seat at any time to take an office, which 
was not created or whose salary was not increased 
during his term of office. 

II. What this clause does prohibit. — It does 
guard against two sources of corruption. 

1. It prohibits any member of Congress getting a 



64 POWERS OF MEMBERS. _ [1: 6, 2. 

civil office created, or the salary of such an office in- 
creased, and then being appointed to it himself, before 
his term of office is out. 

2. It prohibits any one being at the same time a mem- 
ber of Congress, and an officer of the United States. 
A member of Congress is not an officer of the United 
States, but a representative of a State or of the people. 

III. Additional eesteictioks. — Besides these re- 
strictions, the following may be added: 

1. No Senator or Representative can be a Presidential 
Elector. (11,2.) 

2. In all the States, the State Constitutions prohibit 
United States Senators and Representatives from hold- 
ing any State office, or being elected to the State Legis- 
latures. 



1: 7, 1.] THE PROCESS OF MAKING LAWS. C5 

SECTION 7. 

THE PROCESS OF MAKING LAWS. 



(a.) Revenue bills— in the IIousc of 
Bills Omoi- I Representative I, 7, 1 

1 (b) Other bills -in either House .... 1,7.2 



< 

SB <J j f (a.) With the President's signature .. I, 7, 2 

ss 

Ah 

a 



. (b.) Over his veto I. r.S 

II. Bills Become I . . „ . . . . . . . , T _ n 

L AWa ^ (c.) By his neglect to sign in ten d.ys T. ,. - 



I (d.) But an adjournment of ( 



within ten days kills the bill — I. 7, 2 
III. Joint Resolutions— also need President's concurrence I, 7, 3 

CLAUSE I. 

WHERE BILLS MAY ORIGINATE. 

All bills for raising revenue shall originate in the House of Representa- 
tives; but the Senate may propose or concur with amendments as on 
other bills. 

I. Bills which the house of representatives 
only can originate. — Most bills may originate in 
either the Senate or the House of Representative?; but 
revenue bills must originate in the House of Represent- 
atives. 

This provision is taken from the unwritten Constitution 
of England. There the House of Commons alone can 
originate money bills, and the House of Lords can only 
accept or reject them, but cannot propose amendments 
to them. Here the House of Representatives only can 
originate money bills; but the Senate has the right to 
propose amendments. The reason for requiring bills 
for raising taxes to originate in the House of Repre- 
sentatives, is because that body represents the people 
directly, and it is the people who are to pay the taxes. 



06 THE PROCESS OF MAKING LAWS. [I: 7, 2. 

II. Bills which either house may originate. — 
The Senate* may, however, originate bills which raise 
revenue indirectly, so long as their main object is not 
to raise revenue. For instance, a law to levy a direct 
tax or a law to assess duties on certain imported goods 
must originate in the House of Representatives, but a 
law the violation of which was to be punished by fines 
to be paid into the treasury, or a law to regulate the 
sale of public lands, might originate in either House. 
Any bill which does not relate to raising revenue may 
originate in either House. 

CLAUSE 2. 
HOW BILLS MAY BECOME LAWS. 

Every bill which shall have passed the House of Representatives and the 
Senate, shall, before it become a law, be presented to the President of 
the United States; if he approve, he shall sign it; but if not, he shall 
return it, with his objections, to that House in which it shall have 
originated, who shall enter the objections at large on their journal, and 
proceed to reconsider it. If, after such reconsideration, two-thirds of 
that House shall agree to pass the bill, it shall be sent, together with the 
objections, to the other House, by which it shall likewise be reconsid- 
ered, and if approved by two-thirds of that House, it shall become a law. 
But in all cases the votes of both Houses shall be determined by yeas 
and nays, and the names of the persons voting for and against the bill 
shall be entered on the journal of each House respectively. If any bill 
shall not be returned by the President within ten days (Sundays ex- 
cepted) after it shall have been presented to him, the same shall be a 
law, in like manner as if he had signed it, unless the Congress, by their 
adjournment, prevent its return, in which case it shall not be a law. 

I. The different ways in which a bill may 
become A law. '■ — There are three ways in which a bill 
may become a law : 

1. It may pass both Houses and be signed by the 
President. 

2. It may pass both Houses, be vetoed by the Presi- 
dent, and be passed over his veto by a two-thirds ma- 
jority of each House. 



I: 7, 2.] HOW BILLS MAY BECOME LAWS. G7 

3. It may pass both Houses, and the President may 

fail to sign it within ten days (when these are not at 
the close of the session). 

A bill becomes a law as soon as any one of these 
conditions is complied with. And it goes into operation 
as a law at once, unless it is expressly provided in the 
law that it shall go "into operation at some future time. 

There are four ways in which a hill may be lost: 

1. It may not pass the Senate. 

2. It may not pass the House of Representatives. 

3. It may be vetoed by the President, and not passed 
over his veto by Congress. 

4. It may be retained by the President within ten 
days of the end of the session, without cither his sig- 
nature or his veto. 

II. The president's veto. — The power of the 
President to reject a bill is generally called the cvto 
power. 

The veto power of the President is derived from the 
veto power of the English sovereign. A king (or 
reigning queen) of England has an absolute veto, but 
the President has a limited veto. The veto of a bill by 
the king of England is final. The act cannot be re- 
versed by Parliament. But the President has a limited 
veto. A bill vetoed by him may become a law in spite 
of his veto, by a two-thirds vote of each House of 
Congress. But the absolute veto of the English sover- 
eign is rarely used, while the limited veto of the Presi- 
dent is frequently used. ' 

1 The last veto by an English sovereign was by Queen Anne in 1707^ It is 
very unlikely that any English sovereign will over again exercise that power, 
for reasons which the student of the English constitution will understand. 

Most of our Presidents have used the veto power, but always sparingly. 
President Johnson, in course of the struggle with Congress which culmi- 
nated in his impeachment, vetoed twenty-one bills, seventeen of which 
were passed by Congress over his veto. lie also retained nineteen bills, 
which became laws without his signature. No other President vetoed more 
than five bills, and several did not veto any. The veto power is one to be 
rarely *sed, *ud only to prevent measures which are obviously very bad. 



63 THE PROCESS OF MAKING LAWS. [1:7,2. 

III. Passage of a bill oyer the president's 
veto. — When the President vetoes a bill, lie sends it 
with his objections to the House in which the bill orig- 
inated. These objections are to be entered on the jour- 
nal of the House, so that there may be a permanent 
record of them in connection with the legislative action 
upon that bill. If the bill thus vetoed fails of a two- 
thirds majority in the House to which it is first sent, 
that is the end of it. But if it passes that House, then 
it is sent to the other House. If it fails of a two-thirds 
majority there, that is the end of it. But if the bill 
receives a two-thirds majority in that House also, it be- 
comes a law in spite of the President's veto. The vote 
in each House on a vetoed bill must be by ayes and 
noes, and must be recorded in the journal, to make each 
member as responsible for his vote as the President is 
for his veto. 

IV. HOW A BILL MAY BECOME A LAW WITHOUT THE 

president's signature or yeto. — The time in which 
the President can consider a bill is limited to ten days, 
not counting Sundays. Otherwise, the President might 
embarrass legislation by holding bills indefinitely with- 
out signing or vetoing them. If the President fails to 
sign a bill within ten days (not counting Sundays), the 
bill becomes a law without his signature. 

V. Pocketing a bill. — The President has a veto 
power, which is practically that of an absolute veto, 
over those bills which are passed in the last ten days of 
the session. He can refuse either to sign or veto those 
bills, which kills them. This is called "pocketing" a 
bill. 

When the President " pockets " a bill, Congress can 
do nothing about it, because it is not in session. But 
the same bill may be introduced as a new bill at the 



I: 7, 3. J JOINT RESOLUTIONS. 69 

next session. The larger part of all bills which pass 
Congress are passed in the closing days of a session; and 
therefore this power of the President is more important 
than it may seem at first. 

CLAUSE 3. 

JOINT RESOLUTIONS. 

Every order, resolution, or vote to which the concurrence of the Senate and 
House of Representatives may he necessary (except on a question of ad- 
journment), shall he presented to the President of the United Stai 
hefore the same shall take e fleet, shall he approved by him, or being 
disapproved by him, shall be repassed by two-thirds of the Senate and 
House of Representatives, according to the rules and limitation- pre- 
scribed in the case of a bill. 

I. TlIEY MUST BE SUBMITTED TO THE PRESIDENT. — 

Those resolutions, which are intended to have the 1 
of laws, need also the President's signature, like bills. 
The mere fact that they are called resolutions instead of 
bills, does not change the method of their going into 
effect. Were it not for this provision, Congress might 
try to elude the President's veto by passing an order or 
resolution, which should have the effect of law. The 
courts would probably decide that such action was un- 
constitutional, because an evasion of the President's veto 
power. But this clause of the Constitution settles the 
question be} r ond controversy. 

But when a resolution is not intended to have the 
force of law, but only to express the opinion of one or 
both Houses, it does not need the President's signature. 
This is obvious in the case of a resolution of either 
House alone. 

When both Houses together pass a resolution not in- 
tended to have the force of law, such a resolution is 
called a concurrent resolution, not a joint resolution, and 
it is not signed by the President. 



70 HOW BILLS MAY BECOME LAWS. [I: 7, 3. 

II. Congressional action which need not be sub- 
mitted TO THE PRESIDENT. 

Any action of one House alone or both Houses together, which 
does not have the effect of law, does not need to be submitted to the 
President. The following proceedings do not need the President's 
signature, or a legal substitute for it: 

I. Any action of one House separately, such as, 

1. Anything affecting the organization of either House. These 
concern only that House, and are therefore determined by it alone. 
(a) Thus each House is the judge of the elections, qualifications and 
returns of its own members (Art. 1, Sec. 5, Clause 1). No other 
power can interfere with this right. Neither the President, nor the 
other House nor the courts have anything to do with this question. 
Each House can pass any orders, resolutions or votes upon any ques- 
tion as to who are lawfully entitled to sit as its members. The 
decision is final, whether right or wrong, and it can only be reversed 
by some other action of the same House. 

(&) Each House can elect its own officers, except that the Vice 
President of the United States is President of the Senate (I, 3, 4). 
This right belongs to each House by itself, and no other power can 
lawfully interfere with it. 

2. Any resolution expressing the opinion of one House. Any 
society, political convention, or public meeting may express its 
opinion by resolutions. And either House of Congress has the same 
right to express its opinions by resolutions. Such a resolution has 
no legal force, and does not require the assent of the other House 
or of the President. 

3. An impeachment by the House, or the trial of an impeach- 
ment by the Senate, or any orders or resolutions relating to them, 
do not need the President's signature. In this case the two Houses 
are not acting as legislative bodies, but as judicial bodies, the 
House of Representatives as a public prosecutor and the Senate as 
a court. As their actions in this case are not in the nature of laws, 
they do not need the President's signature. 

II. Certain resolutions of both Houses, which do not have the 
effect of laws, do not need the President's signature. 

1. A resolution proposing an amendment to the Constitution does 
not need the President's signature. Such a resolution does not 
amend the Constitution, but only proposes an amendment. It is 
the action of the States, through legislatures or conventions, that 
actually amends the Constitution (see page 249). 



1: 7, 3.] JOINT RESOLUTIONS. 71 

2. A resolution which is in the nature of an agreement between 
the two Houses to do something, does not need the President's sig- 
nature. Such a concurrent resolution has no binding force, except 
the honor of the two Houses. Each House still can do as it pie 

It is bound by no law. As such a resolution is not a law, it docs 
not need the President's signature. 

3. In brief, it may be said that any action of Congress which is 
in the nature of a law , must; be submitted to the President for his 
approval, and any action which is not in the nature of a lan\ does 
not need to be so submitted. 



72 



POWERS OF CONGRESS. 



[1:8. 



SECTION 8. 

POWERS OF CONGRESS. 

* 

ANALYSIS OF THIS SECTION. 

(And other powers of Congress granted in other parts of this Constitution.) 



o 



II. 



Financial 
Powers .... 



General Statement. —All legislative powers granted 
by the Constitution are vested in Congress 1, 1 

1. To lay and collect taxes, duties 
and excises I, 8,1 

2. To pay the debts of the U. S I, 8, 1 

3. To provide for the common defense 
and general welfare I, 8, 1 

4. To borrow money on the credit of 
theU. S I, 8,2 

1. To regulate foreign commerce I, 8, 3 

2. To regulate domestic commerce . . I, 8, 3 

3. To establish uniform bankrupt 
laws I, 8,4 

4. To coin money I, 8, 5 

5. To regulate the value of foreign 
coins I, 8,5 

6. To fix the standard of weights and 
measures I, 8,5 

7. To provide for the punishment of 
counterfeitiug I, 8,6 

8. To establish post offices and post 
roads I, 8,7 

9. To grant patents and copyrights.. I, 8, 8 

10. To prohibit the slave trade after 
1S08 I, 9,1 

11. To tax the slave trade before that 
date I, 9,1 

k 12. To allow States to levy duties I, 10,2 



iii. c om3iercial 
Powers 



1:8.] 



POWERS OF CONGRESS. 



IV. War Powers. 



V. Powers RE- 
LATING TO 
CONUltESS . 



VI. 



POWERS RE- 
3LAT1NG TO 

the Presi- 
dent 



VII. Powers re- 
lating to 
the Judi- 
ciary. 



1. To declare war I, 8, 11 

2. To send out privateers I, 8, 11 

3. To make rules concerning captures 

on land or sea I- S. 11 

4. To raise and support armies 1. 

5. To provide and maintain a navy.. I, 8, 13 

6. To make rules for the army and 

navy I, 8, 14 

7. To provide for calling forth the 

militia I, 8, 15 

8. To provide for organizing, arming 

and disciplining the militia I, 8,16 

9. To suspend the writ of habeas cor- 

pus in case of rebellion or inva- 
sion I. '.». 2 

10. To allow States to keep armies and 

navies I, 10,3 

11. To allow States to make treaties or 

compacts. I, 10,3 

12. To allow States to engage in war. . I, 10, 3 

1. To apportion Representatives, 

I, 2,3, and Am. XIV 

2. To reduce the representation of 

States which abridge the num- 
ber of voters Am. XIV. I 

0. To regulate the elections for 

Senators and Representatives I, 4, l 

4. To fix the time of the annual 

meeting I, 4,2 

5. -To adjourn I, 5, 4 

6. To fix the salaries of Senators 

and Representatives I, 6, l 

1. To fix the day of choosing Pres- 

idential electors, and of their 

meeting to choose a President II. 1,4 

2. To canvass the returns of a Pres- 

idential election Am. XII 

3. To determine what officer shall 

act as President, when there 
is no President or Vice Presi- 
dent II, 1,6 

4. To fix the salary of the President 

and other executive officers.. II, 1. 7 

5. To regulate the civil service II, -2, -2 

1. To fix the salaries of U. S. 

Judges Ill, 1 

2. To regulate the appellate juris- 

diction of the Supreme Court, III, 2, 2 



74 



POWERS OF CONGRESS. 



[1:8. 



VII. Potters re- 
lating to 
the Judi- 
ciary, con. 



VIII. 



'overs 


RE- 


LATING 


TO 


THE JURIS- 


DICTION 


OF \ 


THE U. 


s.. 







IX. Powers re- 
lating to 
the States 



X. Ml S CELL A- 

NEOUSPOW- j 
ERS ^ 



XI. General 
powers.... 



3. To establish inferior courts, 

I, 8, 9, and III, 1 

4. To fix the place of trials for 

crimes committed outside of 

any State Ill, 2, 3 

5. To declare the punishment of 

treason 111,3,2 

1. To define and punish piracies 

and felonies on the high seas, I, 8, 10 

2. To define and punish offenses 

against the law of nations... I, 8, 10 

3. To exercise exclusive legisla- 

tion in the District of Colum- 
bia I, 8,17 

4. To exercise exclusive legisla- 

tion in forts, arsenals and 
dockyards I, 8, 17 

5. To govern the territory of the 

U. S IV, 3,2 

1. To admit new States IV, 3,1 

2. To guarantee to every State a 

republican form of govern- 
ment IV, 4 

3. To prescribe the manner of 

proving the public records of 

one State in another State.... IV, 1 

4. To allow States to collect duties, I, 10, 2 

5. To allow States to keep armies 

and navies, make treaties and 

engage in war I, 10, 2 

6. To submit proposed amend- 

ments to the States V 

1. To allow TJ. S. officers to accept 

presents or titles from foreign 

powers I, 9, 8 

2. To remove rebel disabilities.... Am. XIV, 3 

3. To enforce the provisions of 

Am's XIII, XIV and XV .... 

1. To make all laws needed to 

make these powers effective. I, 8, 18 

2. To make all laws needed to 

carry into effect all other 
powers vested in any part of 
the government 1,8, 18 



1: 8.] POWERS OF CONGRESS. 75 

SECTION 8. 

POWERS OF CONGRESS. 

I. The powers of congress are legislative 

POWERS. 

Thus far this Article has treated of the organization of Congress. 
This section and the next treats of the legislation of Congress. 
Congress is the law-making power of the government, and any 
laws which the Federal government is authorized to make, ma}' be 
made by Congress. The United States government can only make 
laws through Congress. And therefore the powers of law-making 
given in this section arc expressly given to Congress, and the 
restrictions upon legislation by the United States, are expressly 
imposed upon Congress, as the legislative department of the gov- 
ernment. 

The powers of Congress are all legislative powers. Congress has 
all the legislative power of the Federal government, except as lim- 
ited by the President's veto, and has no powers except legislative 
powers. 

II. Concurrent powers of state legislatures. 
The States can make laws on those subjects given in this section 

or elsewhere, on which Congress can make laws, with these two 
exceptions: 1. States cannot legislate on subjects forbidden them by 
this Constitution. 2. State laws must give way to United States 
laws on all other subjects. 

III. These legislative powers are subject to 

THE PRESIDENT'S VETO. 

As these powers are all powers to make laws, they are of course 
subject to the President's veto, as explained in the last section. 
There are some things Congress can do without the President, but 
nothing in the way of legislation. 



70 POWERS OF CONGRESS. [1: 8, 1. 

CLAUSE 1. 

TAXATION". 

The Congress shall have power to lay and collect taxes, duties, imposts 
and excises, to pay the debts and provide for the common defense and 
general welfare of the United States; but all duties, imposts and excises 
shall be uniform throughout the United States. 

I. The power of taxation inherent in govern- 
ment. — Taxation of some kind is necessary to all gov- 
ernment. The labor of government, like all other labor, 
is expensive, and sometimes is very expensive. In war, 
especially, the expenses of government become enor- 
mous. 

All governments exercise the power of taxation as a 
necessary part of their sovereignty. And if this Con- 
stitution had not expressly given, this power, it still 
would have been implied in the fact of a government. 

Under the Articles of Confederation the sovereignty 
was in the several States, and therefore the power of 
taxation was left to each State separately. The United 
States was not a nation, but a confederation of nations. 
Congress under the Confederation was not the legisla- 
tive department of a national government, but an 
assembly of delegates from allied governments, to con- 
sult together for the common good. They could not 
tax, but they could ask the States to tax, and the States 
could tax or not as they pleased. 

But this Constitution made us a nation, with a na- 
tional government. For that government the power 
of taxation is necessar} r , and is given in this clause. 

II. The power of taxation resides in the repre- 
sentatives of the people. — In despotic or aristo- 
cratic governments the power of taxation is not in the 
hands of those who pay taxes. But in republics or 



1:8,1.] TAXATION. 77 

limited monarchies the people, o* their representative-, 
have the power of taxation. When those who pay the 
taxes themselves levy them, taxes are more justly col- 
lected and more wisely used. There is no power of the 
government which the people watch more closely than 
the power of raising and expending the public funds. 

III. The states mat also levy taxes. — The fact 
that the United States exercises the right of taxation, 
does not preclude the States from also levying taxes, 
nor does it forbid them authorizing cities, counties, 
towns, villages and school districts from levying taxes 
for their own purposes. But no State may levy duties 
on imports or exports for its own revenue. (Section 10.) 

IV. Methods of taxation.— The following analy- 
sis gives all the methods of taxation named in the 
Constitution: 

(Property tax. 
Poll tax. 

taxes.. -I 

r Duties. 

[ Indirect \ Imposts. 

t Excises. 

Taxes are direct or indirect; direct taxes are those 
which are paid directly by the tax payer to the govern- 
ment; indirect taxes are those which are paid directly 
by the merchant or manufacturer on his goods, but 
which are paid indirectly by those who buy those goods. 
Indirect taxes are easier for the government to collect, 
because people do not stop to think how much goes to 
the government of what the}* pay for goods. 

For this reason the United States government has 
used indirect taxation almost entirely. 

Y. Direct taxes. — The Constitution provides that 
direct taxes shall be laid upon the States according to 



78 POWERS OF CONGRESS. [I: 8, 1. 

their representative population (see I, 2, 3, and I, 9, 4). 
This was one of the compromises between the Northern 
and Southern States. The representative population is 
now, since slavery has been abolished, the same as the 
actual population, excluding uncivilized Indians. Only 
five direct taxes have been collected by the Federal gov- 
ernment—in 1798, 1813, 1815, 1816, and 1862. But 
the States raise most of their taxes by direct taxation. 

Direct taxes may be upon property or upon persons. 
Direct taxes upon property are levied by taking a cer- 
tain per cent, of the assessed valuation of the property 
taxed. But when a direct property tax is levied by the 
United States, the per cent, will vary in the ratio of the 
population to the wealth of the several States. The 
amount to be raised is apportioned among the States 
according to their population, but within each State it 
will be apportioned according to property. The effect 
of this is to tax the property of the newer and poorer 
States, more than that of the older and richer ones. If 
the government raised many direct taxes, this would be 
an injustice to be redressed. 

A direct tax upon persons is called a poll tax or capi- 
tation tax. In that case, each person liable to the tax 
is called on to pay an equal amount. 

VI. Duties. — A duty is a tax on the importation 
or exportation of goods. Export duties are probably 
forbidden by the Constitution (I, 9, 5). Duties on im- 
ports arc (a) specific duties or (b) ad valorem duties. A 
specific duty is one upon the weight or measure of 
goods; an ad valorem duty is one upon their value. 

VII. The tariff question. 

The rate of duties is called a tariff. A prohibitory tariff is one 
which puts the duties on one or more articles so high that it does 
not pay to import them. A protective tariff is one high enough to 
make it profitable to manufacture or raise in this country articles 



1:8,1.] TAXATION. 79 

thus protected. A revenue tariff is one high enough and yet not too 
high to yield a good revenue to the government. Free trade e 
where there is no tariff. 

The tariff question has been one of the great political questions 
on which parties have divided; and it is likely to be a, prominent 
political issue for many years to come. No party wishes free 1 1 
and none wishes a prohibitory tariff. The contest is between a high 
protective tariff and a revenue tariff. On this question people gen- 
erally divide according to their real or supposed interests. As a 
rule, the agricultural sections of the country favor a revenue tariff, 
the manufacturing sections a protective tariff, and the commercial 
centers stand neutral. 

The collection of duties is in charge of the Bureau of Customs, 
which is a part of the Treasury Department. Duties are col!' 
at the custom houses located at the various ports of entry, by officers 
called custom house officers. 

VIII. Internal revenues. — The word imposts is 
used vaguely in the Constitution for any kind of indi- 
rect tax, and is intended to cover any indirect tax that 
any one could claim is not covered by the words duties 
and excises. 

Excises are taxes levied on person who manufacture, 
or articles manufactured, in this country. The chief 
sources of revenue now from excises is the tax on liq- 
uors and tobacco, and the licenses required for carrying 
on certain kinds of business. 

All these kinds of indirect taxes are called now inter- 
nal revenue. Their collection is in the charge of the 
Bureau of Internal Revenue, which is a part of the 
Treasury Department. 

IX. Uniformity of taxation. — Indirect taxes 
must be the same throughout the country. It is plain 
that this is the only fair way of taxation. Direct taxes, 
as we have seen, are not uniform throughout the coun- 
try. But the indirect taxes, from which the United 
States gets most of its revenue, are uniform. The same 



80 POWERS OF CONGRESS. [1: 8, 2. 

duties are charged at one port of entry as at another, 
and the same excises are charged in one State as another. 

X. The objects oe taxation. — This section limits 
the power of Congress to tax the people to these three 
objects: (a) to pay the debts of the United States, (b) 
to provide for the common defense, and (c) to provide 
for the general welfare. Congress has no right to tax 
the people except for these three objects, and only 
enough to accomplish these objects. The general wel- 
fare is a vague expression, which allows a wide margin 
for the discretion of Congress as to what things are 
needed for the general welfare. But the public money 
cannot lawfully be squandered as it is in monarchies for 
the luxury and pride of a king and his court. It can- 
not be expended for the sole benefit of one State to the 
exclusion of the rest. It cannot be used for any thing 
that obviously does not provide for the common defense 
or for the general welfare. 

CLAUSE 2. 

THE POWER TO BORROW. 

To borrow money on the credit of the United States. 

I. The public debt. — This clause gives Congress 
the power to borrow. No other department of the gov- 
ernment can borrow money except as authorized by law* 
to do so. Sometimes in times of great emergency dur- 
ing war, the Secretary of the Treasury has borrowed 
money; but these acts were unlawful, and were only 
made lawful by a law passed afterwards. 

In time of peace, the regular revenues ought to pay 
all expenses of the government. But no taxation which 
the people could afford to pay would be enough to carry 



1:8,2.] THE POWER TO BORROW. 81 

on a great war without borrowing money. During the 
Civil War the expenses of the government were over 
two million dollars a day. A large part of this neces- 
sarily had to be borrowed. 

II. Classification of the public debt. 

The debt of the United States is in three forms: (a) bond.-; ib) 
treasury notes; (c) floating debt. 

The greater part of the debt is in bonds. Of these there are two 
kinds, registered bonds and coupon bonds. The registered bonds 
are called so because a register of each bond is kept in the Unite I 
States Treasury, with the nam? and residence of the holder of the 
bond. It is thus safe against thieves, because no one except the 
person who owns it can collect it or the interest on it from the gov- 
ernment. If the holder of such a bond wishes to sell it, he 
give notice to the proper officers at Washington, and have the bond 
transferred on the books to the person to whom he sells it. 

The coupon bonds are not thai registered at Washington, and 
thus are as liable to be stolen as any other property. They are 
named from the coupons or little slips of paper attached to them, 
each of which represents the interest on that bond tot As. m 
As these become due, they may be cut off and sold at any broker's 
office or bank. The government will pay the bonds or coupons, 
when they are due, to any person who presents them. The gov- 
ernment bonds that are now outstanding nearly all bear interest at 
the rate of four, four and a half, or five per cent., payable semi- 
annually. 

Treasury notes, commonly called "greenbacks," are promises to 
pay money on demand. As they are made a legal tender for d 
they circulate as money. Although the notes are promises to pay 
on demand, they circulated from 1S62 till 1S79 without being paid 
by the government. 

The floating debt consists of salaries due, interest accruing, bills 
of contractors not yet paid, and the like. This debt is never very 
large, and is kept paid up as promptly as possible. 

III. Payment of the debt. 

The public debt is being gradually paid up, and that much faster 
than the public debt of other nations. Because of this, the credit of 
the United States is as good as that of any nation in the world ex- 
F 



82 POWhRS OF CONGRESS. [1: 8, 3. 

cept England, and we are able to borrow money at low rates of 
interest. It is probable that in the course of a few years the debt 
will be funded in four per cent, bonds running for a long term of 
years, and that the money thus saved on interest will be applied to 
the payment of the principal. 



CLAUSE 3. 

THE POWER OVER COMMERCE. 

To regulate commerce with foreign nations, and among the several States, 
and with the Indian tribes. 

I. Previous history. — Before the Revolution, 
Great Britain regulated the commerce of the colonies 
with each other, with the home country and with the 
rest of the world. During the war and until this Con- 
stitution was adopted, each State regulated its own 
commerce in its own way. Each State tried to favor 
its own commerce at the expense of the rest, and the 
result was that the commerce of all was hampered, and 
local jealousies were greatly increased. If this power 
of regulating commerce had not been given to the 
general government, there can be little doubt that these 
commercial rivalries would have broken up the Union 
eventually. It was wise, therefore, to give the power of 
regulating commerce to Congress. 

II. State powers of regulating commerce. — 
The States have no power over the subject of commerce 
except, 

1. Commerce within the State; or 

2. Such duties on commerce as Congress may allow 
(I, 10, 2 and 3), and these must be uniform in all the 
States (I, 9, 6); or 

3. By inspection laws. 

The States have no power over commerce within their 



I: 8, 3.] THE POWER OVER COMMERCE. 83 

boundaries, except that which is wholly within their 
boundaries. For instance, commerce on the Erie 
canal is wholly within the State of New York, and the 
New York legislature and not Congress is the proper 
body to deal with it. But the Hudson river is partly 
in New York and partly in New Jersey, and the two 
bodies have each jurisdiction on that river. Commerce 
between New York and Albany on that river is in the 
jurisdiction of the State of New York. But commerce 
between New York and Jersey City is under the juris- 
diction of the United States. 

Inspection laws are intended to prevent frauds in the 
sale of goods. Inspectors are appointed in many States 
who inspect goods offered for sale, and see that they 
are of the proper weight or measure and of the right 
quality. These inspectors are generally paid by fees, 
which, of course, are really the same as duties on the 
goods inspected. A State might, under the name of 
inspection fees, impose heavy duties on goods coming 
from other States or countries. To prevent this, the 
Constitution (I, 10, 2) provides (a) that the net produce 
of such imposts shall be paid into the United States 
treasury, and (6) that inspection laws shall always be 
subject to the revision of Congress. 

III. Commerce with foreign xatioxs. — Congress 
has power to regulate commerce with foreign nations. 
But Congress has not power to prohibit commerce for 
any length of time. One Congress laid an embargo on 
all foreign commerce, forbidding it as a reprisal for the 
action of European powers. The measure aroused 
bitter political feeling, and was repealed in a little over 
a } T ear. It is not likely that any such embargo will 
ever be laid on our commerce again. Congress has the 
right to so regulate foreign commerce as to raise a 



84: POWERS OF CONGRESS. [1: 8, 3. 

revenue from ifc, or to favor our own commerce or man- 
ufactures, or to retaliate injuries or reciprocate benefits 
derived from the commercial laws of other nations, and 
the right to regulate commerce has been used in all these 
ways. 1 

There is one way in which foreign commerce may be 
regulated without an act of Congress. A treaty made 
by the President and confirmed by the Senate, may 
regulate commerce between the United States and the 
power with which the treaty is made. Such a treaty 
annuls any act of Congress in conflict with it, and can- 
not be repealed by act of Congress (see page 254). Such 
commercial treaties are a part of the supreme law of 
the land, and are superior to any act of Congress. 

IV. Commerce between the states. — Congress 
has power to regulate commerce among the several 
States. In the exercise of this power, Congress has 
wisely made all commerce within the United States free. 
A merchant can travel from State to State without be- 
ing stopped by vexatious duties at the border of each 
State. Freight and passengers are carried past State 
boundaries without hindrance. For all the purposes of 
commerce this great territory is a unit. The only reg- 
ulations that have been prescribed are such as are needed 
for the safety of ships and steamboats. 

Railroads have thus far been left under the control of 
the several States, but there is no doubt that Congress 
could control the whole subject of railroads, if it chose. 
The only possible exception would be in the case of 
those railroads which are wholly within one State. 

»"In the practice of the government, the commercial power has heen 
applied to embargoes, non-intercourse, non-importation, coasting trade, 
fisheries, navigation, seamen, privileges of American and foreign ships, 
quarantine, pilotage, wrecks, light-houses, buoys, heacous; obstructions in 
bays, sounds, rivers and creeks; inroads of the ocean, and many other 
kindred subjects; and doubtless, includes salvage, policies of insurance, 
bills of exchange, and all maritime contracts, and the designation of ports 
of entry and delivery." — Farrar's Manual of the Constitution, p. 328. 



1:8, 4.J NATURALIZATION AND BANKRUPTCY. 85 

The control of these would perhaps be still in the hands 
of the State in which they are. 

V. Commerce with the Indian" tribes. — Con- 
gress has sole control of commerce with the Indian 
tribes. These tribes are not foreign nations, nor are 
they composed of citizens. They are subject peoples; 
and as such they are under the control of the Federal 
government. Commerce, like all other relations with 
them, is under the control of the general government. 
Even if one of these tribes is located within the boun- 
daries of a State, the State has nothing to do with it. 
The United States alone controls all relations with it. 

CLAUSE 4. 
NATURALIZATION and bankruptcy. 

To establish an uniform rule of naturalization, and uniform laws on the 
subject of bankruptcies throughout the United Statr^. 

I. Reason for this clause. — Naturalization i- 
the process by which a foreigner becomes a citizen. 
The power of naturalization is one of the attributes of 
sovereignty. As long as the States were held to be sov- 
ereign, it was proper that they should have the power 
of naturalization, as they did under the Articles of 
Confederation. But when this Constitution was framed 
to make us one nation, this power of naturalization was 
taken from the State legislatures and given to Congress. 
Some practical abuses had arisen from the States re- 
quiring different times of residence. A foreigner who 
thought the time required in one State too long, had 
only to move to a neighboring State to be naturalized 
in a much shorter time. It was, therefore, provided 
that the rule of naturalization should be uniform. 

II. What is citizenship. — A citizen is a member 



86 POWERS OF CONGRESS. [1: 8, 4. 

of the body politic. All the citizens together make up 
the nation. All persons who are not citizens are aliens. 
A common mistake is to suppose that citizens are the 
same as voters. As a fact, most citizens are not voters, 
and not all voters are citizens. Women and children 
are not voters, but are citizens, if otherwise qualified. 
And in several States men can vote who are not citizens 
of the United States, but who have only declared their 
intention to become citizens. The student should care- 
fully distinguish between citizens and voters. 

III. Who are citizens. — By the Fourteenth 
Amendment citizenship is defined thus: 

" All persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens of 
the United States and of the State wherein they reside." 

The phrase, " and subject to the jurisdiction thereof," 
was meant to shut out from citizenship those Indians 
who ohej their tribal customs, iustead of the laws of 
the United States. 

Those Indians who, by permission of Congress, have 
left their tribes, and are subject to the United States 
laws, are citizens. 

There are thus two ways in which any one may 
become a citizen: 

1. By birthright. 

2. By naturalization. 

A nation is like a family in this respect, for there are 
two ways in which a person may become a member of 
a given family — by birthright and adoption. Natural- 
ization makes any one a citizen of a given nation in 
the same way in which adoption makes any one a mem- 
ber of a given family. Citizens of the United States, 
then, may be either natural born citizens or naturalized 
citizens. 



1 : 8, 4.] NATURALIZATION AND BANKRUPTCY. 87 

IV. Natural-born citizens. — This phrase is used 
in Article II, section 1, where it is provided that the 
President of the United States shall be a natural-born 
citizen. A natural-bom citizen is not necessarily a 
native of the United States. Members of Indian tribes 
are natives, but are not natural-born citizens. And there 
are some natural-born citizens who are not natives of 
the United States, but were born in other countries. 
There are two conditions required to make a natural-born 
citizen — parentage and place of birth. A child born 
of American parents in any place under American jur- 
isdiction is unquestionably a natural-born American 
citizen. But where the parentage and birthplace do not 
agree, there is a case of doubtful citizenship which is 
decided by the choice of the person himself, when he 
comes to years of manhood. 

Any person born of an American father, in a place 
subject to the jurisdiction of a foreign nation, may be 
a natural-born American citizen, if he claims that priv- 
ilege when he arrives at the proper age. So, also, any 
person born of a foreign father in any place subject to 
the jurisdiction of the United States, may be a natural- 
born American citizen, if he choose. In these doubtful 
cases the person may choose the country of his father 
or the country of his birth. So that a person may be a 
natural-born citizen of the United States, without being 
a native of the United States. 

The places outside the United States which are sub- 
ject to the jurisdiction of the United States, are 
(a) United States men-of-war anywhere, (b) Ships 
bearing the American flag, while on the high seas, but 
not in a foreign port, (c) Places purchased for naval 
stations, (d) The houses in which American ambassa- 
dors in foreign lands reside. This extends also to the 



88 POWERS OF CONGRESS. [I; 8, 4. 

* 

persons and families of these ambassadors and their sub- 
ordinate officers. So that a child born to any of them 
in a foreign country is considered to be born under the 
jurisdiction of this country (see also page 211). This ex- 
tends to consuls in heathen or Mohammedan lands, but 
not to consuls in Christian lands. 

So also the children of foreign ambassadors or their 
subordinates born in this country are not natusal-born 
citizens. 

V. Naturalized citizens. — Persons have been 
naturalized in each of the following ways: 

1. Under the naturalization law of the United States. 
For this, two steps are necessary: 

(a) The foreigner who wishes to be naturalized must 
" declare his intention to become a citizen of the United 
States." He can do this at any time after coming to 
this country, the very day he lands if he pleases. It 
must be before the Clerk of some United States or State 
court, who gives him a certificate, which is popularly 
called his "first papers." 

This declaration of intention is the first step to citi- 
zenship, and entitles the person taking it to certain 
privileges. It entitles him to protection in foreign 
countries. It entitles him to take up a homestead of 
160 acres of land. It entitles him in several States to 
vote, if otherwise qualified, and to hold most offices. 

(b) But in order to become a full citizen, he must 
take another step, which can only be done during a 
term of some United States or State court, and in open 
court. Before taking this step, he must have resided in 
the United States five years, and it must be at least two 
years after he took out his first papers, and he must 
have sustained a good moral character during that 
time, and been " attached to the Constitution of the 



1:8, 4.J NATURALIZATION AND BANKRUPTCY . 89 

United States, and well disposed to the good order and 
happiness of the same.' 1 ' 

All this having been satisfactorily proved, he re- 
nounces all allegiance to any foreign power, and swears 
allegiance to the United States, and receives a certifl 
of naturalization. This completes his naturalization. 
and is popularly called "taking out his second pap 
He is thus entitled to all the privileges of a citizen, 
except heing elected President or Vice President. 

2. Bij treaty or annexation. When the United States 
annexed Texas, the citizens of that commonwealth « 
made citizens of the United States, by the act of annex- 
ation, by which Texas was mad-' a State in the Union. 
The same was the case with every addition of territory 
made by treaty with France or Spain. Their free in- 
habitants, except wild Indians, became citizens at once. 

3. Members of Indian tribes may be made citizens by 
act of Congress, on leaving their tribal relations and 
coming under the jurisdiction of the United States. 

4. Slaves are not citizens. When the slaves in the 
South were freed, as the result of our civil war, the act 
that made them freemen made them citizens. But to 
make assurance doubly sure, the Fourteenth Amend- 
ment was passed, which made them citizens, if they 
were not already. 

VI. Naturalization of women and children. — 
Women and children may be naturalized in the follow- 
ing manner: 1. When a man is naturalized in any of 
the ways named above, it naturalizes his family also. 
The family which is naturalized consists of his wife and 
his children who are under twenty-one years old, but 
not of other persons who may be living in the family. 

i During our civil war, some special privileges in regard to naturalization 
were given to foreigners who enlisted in our army. "These are ouiiited as 
of no importance now. 



90 POWERS OF CONGRESS. [1: 8, 4. 

If a foreigner has declared his intention to become a 
citizen and dies before becoming a citizen, his widow 
and minor children may go on with the naturalization 
at the proper time, in his place. 

2. If a foreigner comes to this country when he is 
under eighteen years of age, and resides here five years, 
he may take out his first and second papers at the same 
time, but he must be at least twenty-one, and must have 
resided here five years, when he is thus naturalized. 

3. A woman who is over twenty-one, and who is not 
married at the time, may be naturalized on the same 
conditions and in the same way as a man. Several 
women have been thus naturalized in order to take up 
and acquire titles to homesteads. 

4. A woman not a citizen becomes a citizen on mar- 
rying a citizen. On the other hand, a woman who is a 
citizen loses her citizenship by marrying an alien. A 
woman on marrying takes the nationality, as she takes 
the name of her husband. But upon the death of her 
husband or her divorce from him, such a woman, if she 
chooses, claims her former nationality. This applies to 
American women who marry foreigners as well as to 
foreign women who marry Americans. 

VII. Bankruptcy. — A bankrupt is a person who 
is unable to pay his debts. A bankrupt law is a law 
under which a bankrupt may give up to his creditors all 
his property which is liable for debt, or may be com- 
pelled to give it up, and may then be freed from the rest 
of his debts. The objects of such a law are to divide the 
property of a bankrupt fairly among all his creditors as 
far as it goes, and to give the bankrupt a chance to 
begin business again, free from his old debts. 

Congress has power to pass a uniform bankruptcy 
law. As long as Congress does not exercise this power, 



I: 8, 5.] COINAGE, WEIGHTS AND MEASURES. 91 

the States have the right to pass such laws; but when 
the United States has such a law, it supersedes all State 
bankrupt laws, and this law is executed by United 
States courts and officers. The United States has no 
bankruptcy law now. 

CLAUSE 5. 

COINAGE A2TO WEIGHTS AXD MEASURES. 

To coin money, regulate the value thereof, and of foreign coin, and fix the 
standard of weights and measures. 

I. The power of coin - age. — The power to coin 
money is an attribute of sovereignty, and naturally be- 
longs to the United States as a sovereign power. The 
States have no right to coin money (I, 10, 1). Much 
less have cities, counties, or villages, or private individ- 
uals or corporations. Only the United States can coin 
money, and then only by act of Congress. No officer 
of the United States can coin money except as author- 
ized to do so by act of Congress. 

II. United States moxey. — Money is coined in 
the United States in the mints at Philadelphia, San 
Francisco, Carson and Denver. The three latter places 
have been made mints because they are in the gold and 
silver districts of California, Nevada and Colorado. 

Money has been coined from gold, silver, copper and 
nickel. The gold coins of the United States are now 
the dollar piece, the quarter eagle or two and a half dol- 
lar piece, the three dollar piece, the half eagle or five 
dollar piece, the eagle or ten dollar piece, and the 
double eagle or twenty dollar piece. The silver coins 
of the United States are now the trade dollar, the dol- 
lar, the half dollar, the quarter dollar, and the dime. 
The minor coins are made of copper or nickel, and are 



92 * POWERS OF CONGRE83. [1: 8, 5. 

a five cent piece, a three cent piece, a two cent piece 
and a one cent piece. 

III. Treasury notes and bank bills. — Some 
persons claim that treasury notes, or " greenbacks " are 
money. In popular language they are often called 
money, tut in reality they are only promises to pay 
money. The government has the right to issue them, 
and perhaps also to make them a legal tender for debts, 
so that they circulate the same as money; but that does 
not make them money. They are the same as bank notes, 
except that it is the government and not a private bank 
which issues them. If the student will read the words 
printed on one of the greenbacks, he will sse that they 
do not profess to be money, but only promises to pay, 
or "bills of credit 1 ' (I, 10, 1). The currency of a 
country is composed of everything that circulates as 
money, and is received iu payment of debts in ordinary 
business transactions. In this country the currency is 
composed of (a) coin, (b) treasury notes, (c) bank 
notes, (cl) bank drafts and bills of exchange, (e) checks 
drawn by individuals on banks where they have deposits. 
Treasury notes are thus a part of the currency, but are 
not money. 

IY. Foreign coins. — Congress has regulated the 
value of foreign coins, so far as the rate at which they 
shall be taken for taxes and duties. But there is now 
no law attempting to regulate the value of foreign coins 
in the payment of debts. People may take foreign 
coins in business dealings, if they choose, but they are 
not obliged to by law. 

V. The standard of weights and measures. — 
Congress has never exercised the power to fix the stand- 
ard of weights and measures, but has left the subject to 
the State legislatures. This standard, however, is, with 



1:8, 7.] POST OFFICE3 A.ND POST ROADS. 93 

slight exceptions, the same in all the States, so that we 
have the advantages of uniformity. 

Congress has adopted a standard of weights to be 
used in the mints in coining money, but has not re- 
quired this to be used elsewhere. 

Congress has also enacted that the metric system of 
weights and measures shall be lawful but not obliga- 
tory. The object of this is to make people familiar 
with this system, which will probably sometime be 
adopted by all civilized nations, so as make all weights 
and measures throughout the world the same. 

CLAUSE G. 
COUNTERFEITING. 

To provide for the punishment of counterfeiting the securities and current 
coin of the United States. 

Under the power conferred by this clause, the United 
States punishes the counterfeiting of its coins, bonds, 
notes, stamps, and other securities. The punishment is 
by fine and imprisonment in various degrees. 

CLAUSE 7. 

POST OFFICES AXD POST ROADS. 
To establish p st offices and post roads. 

I. Value of the post office. — This is the power 
of the general government which most concerns the 
daily life of our citizens. Every time we receive or 
send a letter, or postal card, or newspaper, we touch the 
machinery of the United States government. \Ye thus 
have friendlj' and business intercourse with distant peo- 
ple, or get periodical literature far cheaper and more 
certainly than we should be able to if the government 



91 POWERS OF CONGRESS. [1: 8, 7. 

did not manage the post office. For one cent we can 
send a short note to any person in the United States; 
for three cents we can send a long letter. It is plain 
that for the States to have each its own postal system 
would lead to endless confusion and delay. The power 
over post offices and post roads is therefore given, by 
this clause, to the United States. 

II. MANAGEMENT of the post offices. 

The Postmaster General has general charge of the postal busi- 
ness of the United States. Besides the assistants and clerks re- 
quired in the Department at Washington, there are many thousand 
persons constantly employed in the postal service of the United 
States. In every city and village of the United States, and in 
some country places far from towns, post offices are established, 
each in charge of a postmaster, with as many assistants as he may 
need. Of the postmasters, about 1,200 holding the most important 
offices, in which the pay is one thousand dollars or more, are ap- 
pointed by the President, with the consent of the Senate. The 
rest, ov.r 30,000 in number, are appointed by the Postmaster Gen- 
eral. 

In addition to these, every considerable railroad has a system of 
mail cars, which are really traveling post offices, which receive and 
distribute mail as the train passes from one end of the railroad to 
the other. By this, all the delay of sorting out mail at distributing 
post offices is saved, and a letter now travels as quickly to its des- 
tination as a passenger does. 

In cities of 20,000 population or more, the mail is carried to peo- 
ple's doors by carriers, and no one is obliged to go to the post office 
for his mail, if he has it directed to his street and number. 

III. The post office as a bank. 

There is danger in sending money through the mail, that it may 
be stolen by some one of the many persons who handle each letter. 
One way of guarding against this is by registering a letter contain- 
ing money or valuables. For a small fee the letter is registered, 
and its progress traced till it reaches the person to whom it is sent. 

But a better method of sending money is by money orders. A 
money order is the same as a draft of one bank on another; only in 
this case it is the draft of one postmaster on another. The fee is 



1: 8, 8.] COPYRIGHTS AND PATENTS. 95 

small, and there is no risk in sending money in this way. But the 
government will not take great risks; it sells no money order over 
fifty dollars. For a larger sum than this one should go to a bank 
for a draft. 

IV. Foreign" postage. 

By postal treaties with other countries we now have mail com- 
munication with all civilized nations. A letter can be mailed at 
any post office in the United States to almost any part of the world, 
and a money order can now be bought at a money order office in 
the United States to Canada and to many parts of Europe. 

Y. Post roads. — Congress lias authority to establish 
post roads. Generally it has simply used roads already 
established by the States. But it has established some 
highways and railroads under the authority of this sec- 
tion. The principal highway thus established, was the 
Cumberland road from the Potomac to the Ohio river, 
and the principal railroad thus established is the Union 
Pacific and Central Pacific Railroads, from the Missouri 
River to the Pacific Ocean. This railroad was not built 
by the United States directly, but by a company which 
was incorporated by Congress, and which was assisted 
by the United States with land and bonds. It was 
built under the authority and with the assistance of the 
United States, as a post road and a military road. 

CLAUSE 8. 
copyrights akd patents. 

To promote the progress of science and useful arts, by securing for limited 
times to authors and inventors the exclusive right to their respective 
writings and discoveries. 

I. Copyrights. — A copyright secures to an author 
the exclusive right to publish and sell his writings. 

The progress of science and literature is greatly pro- 
moted by giving this privilege to authors. Most people 



96 POWERS OF CONGRESS. [1: 8, 8. 

cannot afford to write merely for fame, and unless they 
can be at least paid for their time, they cannot write 
much. A copyright law, by giving them the control 
of their writings, is an encouragement to authors. 

The United States copyright law has created an 
American literature since this Constitution was adopted. 
A large part of this literature would never have been 
written, if there had been no United States copyright law. 

A copyright is given for twenty-eight years, and can 
be renewed for fourteen years more. It may be sold or 
inherited, like other property. This book is copy- 
righted; see the next page after the title page. 

II. Patents.— A patent secures to an inventor the 
exclusive right to manufacture and sell a new inven- 
tion. The liberal patent laws of the United States have 
encouraged very greatly the progress of the useful arts. 
The natural ingenuity of the American people has been 
so stimulated by the rewards of successful inventors, 
that the United States to-day leads the world in the 
manufacture of labor-saving machinery. At every 
World's Fair, American inventions and manufactures 
take a large share of the prizes in this line. Among 
the important inventions of Americans, are the tele- 
graph, the steamboat, the cotton gin, the sewing ma- 
chine, the reaper, the threshing machine, the sleeping 
car, the telephone, the phonograph. 

Besides these great inventions, thousands of lesser 
ones, and thousands of improvements upon machines 
invented elsewhere, help to show the inventiveness of 
the American mind, and the value of our patent laws. 

A caveat is given for one year to any inventor who 
wishes to secure his invention, but who needs time to 
perfect it before patenting. A patent is given only to 
inventions really new, or to improvements on old in- 



1: 8, 9.] UNITED STATES COURTS. 07 

ventions. A patent is given for seventeen years, and 
may be extended for seven years more hy the patent 
office. Congress by special law lias sometimes 
tended the term of certain patents still further. 1 

Patents may be sold or inherited, like other property. 
Every article which is patented must have the word 
"patented," with the date of the patent, affixed to it in 
some way. 

CLAUSE 9. 

UNITED STATES COURTS. 

To constitu'.e tribunals inferior to the Supreme Court. 

I. Supreme court. — A Supreme Court of the 
United States is provided for in Article III. section I. 
But Congress fixes the number of the judges, their 
salaries, and their duties, except as provided by the Con- 
stitution. 

II. Inferior tribunals. — By this clause Congress 
has power to organize inferior courts. This power has 
been used to organize the following courts : 

1. United States circuit courts. 

2. United States district courts. 

3. A court of claims. 

4. A supreme court of the District of Columbia. 

5. Territorial courts in each organized territory. 
The power to organize these courts implies also the 

power to determine the powers of each court, within the 
limits of the Constitution. This power also Congress 
has frequently exercised. 

i But the exercise of this power is very poor policy, because those invent- 
ors who need the benefit of an extension of a patent are the very ones who 
are not powerful enough to secure it: and those who can afford to lohby 
through Congress a special law extending their patents, have become rich 
enough not to need it. The result in such cases is to give a monopoly of a 
useful invention for a long time to people who do not need it and to whom it 
is not in justice due. 

G 



98 POWERS OF CONGRESS. [1: 8, 10. 

CLAUSE 10. 
CRIMES AT SEA. 

To define and punish piracies and felonies committed on the high seas, and 
offenses against the law of nations. 

I. Pieacy. — Piracy is robbery at sea. By the gen- 
eral consent of Christian nations, a pirate is a common 
enemy and an outlaw. A pirate is not entitled to the 
protection of the country of which he is a citizen, but 
may be taken by the forces of any other nation as well 
and punished. The universal punishment for piracy is 
death. 

In addition, the United States and some other nations 
have made the slave-trade piracy, and punish it with 
death. As this is not agreed to by all nations, slave- 
traders do not commit a crime against the law of 
nations, but only against the law of their own nation. 
An American slave-trader can be tried only by the 
courts of his own country; while an ordinary pirate, 
although American, could be executed by any power 
which captured him, with or without trial. 

II. Felonies osr the high seas. — Crimes are either 
felonies or misdemeanors. If the penalty attached to 
them be death, or imprisonment in a state prison, they 
are felonies; otherwise they are misdemeanors. 

The high seas, are those waters of the ocean outside 
the jurisdiction of any particular State. Generally this 
extends to low-water mark. This is the line that di- 
vides the jurisdiction of the United States from that of 
those States which border on the ocean. But so far as 
it concerns other nations, the jurisdiction of the United 
States extends to three miles from low- water mark, in- 
cluding all bays and gulfs. 



1:8,10.] CRIMES AT SEA. 99 

As between the different nations of the world, the 
high seas, that is, the ocean beyond three miles from 
shore, are neutral ground, and free to all, to traverse, 
but not owned by any nation. The jurisdiction of each 
nation extends (a) to its merchant vessels while on the 
high seas, but not in foreign ports, and (b) to its ships 
of war every where, in port or on the high seas. And 
felonies committed by American citizens anywhere be- 
yond low-water mark and outside the jurisdiction of 
another nation, are punishable by United States law and 
not by State law. 

III. Offenses against the law of natiohs. — 
The law of nations, or international law, consists of 
those rules which Christian States acknowledge in their 
relation with each other. 

To secure the observance of these rules by American 
citizens, laws are necessary. Our government is re- 
sponsible for its conduct and for the conduct of its citi- 
zens towards other nations or their subjects. A single 
person could involve us in difficulties and perhaps in 
war with some foreign nations, if we had no laws to 
secure the observance of the Law of Nations by our 
citizens. 

For instance, during our Civil War the English gov- 
ernment allowed Confederate privateers to be fitted out 
in English ports to prey on our commerce. When our 
government demanded reparation for this breach of the 
Law of Nations, it was offered as an excuse that the 
English law was not such that they could prevent those 
privateers being fitted out. 

Our answer was, that it was the business of England 
to have such laws that she could fulfill her duties to 
other nations; that it was not our fault that her laws 
were not what they should be; and that we could not 



100 POWERS OF CONGRESS. [1: 8, 11. 

take that as an excuse. The Tribunal of Arbitration 
to which the dispute was referred, decided that we were 
right, aud condemned, England to pay a heavy indem- 
nity for our losses by those privateers. 

Now the same principle applies to the United States. 
It is the business of our government to obey the law 
of nations and to make our citizens obey it. And it is 
no excuse that we have no laws by which we can en- 
force this. It is our business to have such laws, and to 
enforce them. 

Congress, therefore, very properly has the power to 
make laws respecting offenses against the law of na- 
tions, and this subject is very properly not left to the 
States. 

CLAUSE 11. 

THE WAR POWER. 

To declare war, grant letters of marque and reprisal, and make rules con- 
cerning captures on land and water. 

I. The power to declare war. — The power to 
make war and peace is one of the highest attributes of 
sovereignty. Even under the Articles of Confederation 
the general government had the power to make war 
and peace. The only question that could arise is, 
whether this power should be legislative or executive. 
In this Constitution it is divided. The power to declare 
war is given to Congress, but the power to make 
treaties, which includes the power to make peace, is 
given to the President with the consent of the Senate. 

A declaration of war is not necessary for a war. Acts 
of hostility are enough, and with Indian tribes, fighting 
begins generally without any formal declaration of war. 
So also in the case of our Civil War, there was no reg- 
ular declaration of war. The war was begun by the 
rebels, and the government defended itself. 



Is 8, 11.] THE WAR POWER. 101 

II. Privateering. — Privateers are those private 
armed vessels which are engaged in authorized war. 
They are distinguished from a regular navy bee 
they are fighting for the sake of plunder and are only 
controlled by their commissions, while vessels of the 
regular navy sail under the orders of their own govern- 
ment, and in command of responsible officers. 

Privateers must always have a commission from their 
own government to show that they are not pirates. 
The commission is called a " letter of marque and re- 
prisal." 

Marque means boundary, and reprisal means retalia- 
tion. A letter of marque and reprisal is thus a com- 
mission to a private vessel to go beyond the boundary 
of its own nation and seize the vessels of a certain nation 
in retaliation for wrongs done b}' that nation. 

To issue letters of marque and reprisal is an act of 
war. It may be done without other acts of war, as iii 
the case of our hostilities against France in 1798, in 
which letters of marque and reprisal were issued, but 
war was not regularly entered upon by either side. 

Or it may be done as a part of a regular war, as was 
the case in our war of 181*2, with England. 1 

III. Prizes. — Congress can make rules respecting 
captures on land or sea. This is a necessary incident 

1 Privateering is a remnant of piracy, as Franklin says: "The practice 
of robbing merchants on the high seas, is a remnant of tire ancient piracy. 
Though it be accidentally beneficial to particular persons, it is far from being 
profitable to all engaged in it, or to the nation that authorizes it." 

Privateering is hot' exactly piracy now. under tho regulations of modern 
warfare; but it is a guerrilla warfare at sea. 

The tendency of international law now is to discourage, and if possible 
abolish, privatecrincr. Several Of the leading nations of Europe, at the treaty 
of Paris in 185(5, agreed to abolish privateering, as between each other, and 
have since induced other powers to unite in that agreement. The United 
States refused to agree to abolish privateering, unless the further step 
should also be taken, to forbid all seizures of private property at sea. except 
contraband of war. Steps have been taken by several powers looking 
toward that result. 

And it will not be many years before the United States, in common with 
all Christian nations, will 'bind itself to abolish all privateering, and all 
seizures of private property at sea. When that time comes, this clause of 
the Constitution will become obsolete. 



102 POWERS OF CONGRESS. [Is 8, 11. 

of the war power. This power, however, is limited by 
the recognized rules of international law, and by special 
treaties which we have made with several nations. 

When ships are captured at sea, either by men-of-war 
or by privateers, they are brought into some American 
port and tried by a United States district court, sitting 
as a prize court. All questions, regarding the lawful- 
ness of the capture and the share of the prize to be paid 
to each sailor, are also settled by the court according to 
United States laws. It is usual to divide the proceeds 
of a captured ship among the officers and men of the 
men-of-war or privateers which make the capture. 

Captures may also be made on land of certain kinds 
of property according to the regular rules of war. In 
this case the proceeds of the captures go to the United 
States and not to the soldiers making the capture. 
Questions in regard to the lawfulness of these captures 
will go before a United States court, and be decided 
according to the laws of the United States and the 
recognized rules of war. 

IV. Captuees at sea. 

In war, those nations which are engaged in it are called belliger- 
ents, and all others neutrals. The treatment of neutral ships and 
of neutral goods on an enemy's ships has been growing milder dur- 
ing this century. The question is still in process of being settled 
by the nations of Europe and America. There is little doubt but 
that the rule adopted by many nations (Treaty of Paris, 1856) will 
ultimately be adopted by all, and thus become a part of interna- 
tional law. This rule is that neutral ships with their cargoes 
(whether these are neutral or not), and neutral goods in an enemy's 
ships, are exempt from capture with two exceptions: («) where they 
are attempting to run a blockade of an enemy's port, and [b) when 
they are contraband of war. The abolition of privateering goes 
along with this (see page 101). 

It is possible that the powers of Europe may finally agree to the 
proposal of the United States to go still further and exempt all pri- 



1: 8, 11.] THE WAR POWER. 103 

vate property at sea from seizure, whether it belongs to a neutral 
or a belligerent. If this should ever be agreed upon, then war at 
sea will be confined to ships of war, and merchants will not be in- 
terfered with by war, except to prevent the trade in contra 
goods or in case of a blockade. If this should ever be the case, this 
clause of the Constitution would, of course, be limited in its effect to 
these two cases. In the interest of humanity, we may hope that the 
civilized nations of the world will adopt these milder rules of naval 
warfare. But the United States is as yet only bound by interna- 
tional law to observe these rules: 

1. Neutral goods in neutral ships are exempt. 

2. Neutral goods in enemy's ships are also exempt. 

3. But enemy's goods in neutral ships are liable to seizure. 

4. Contraband goods, that is, arms or articles that directly help 
to carry on war, can be seized in neutral ships as well as in civ 
ships. In frequent cases, the ships carrying contraband may 

be seized. 

5. Neutral ships attempting to run a blockade, may be seized. 

6. And the ships and goods, private or public, belonging to a 
nation at war with us, may be seized, either by our ships of war, or 
by our privateers bearing a lawful commission. 

Y. Captures on land. 

The rule on land is, that the property of neutrals is exempt from 
seizure or destruction, except so far as a state of war naturally puts 
it at hazard. It will not be intentionally captured or destroyed by 
a belligerent. But all the property of the enemy, both public and 
private, is liable to seizure. But in practice this is so modified that 
private property is only taken when it is needed for the operations 
of our army, or it is desired to prevent its use by the others. 

For instance, an army will take any provisions it needs, and any 
horses and wagons, wherever it can find them. It will capture or 
destroy all arms, ammunition and military stores of the enemy. 
And on a retreat, it will destroy railroads and bridges to hinder the 
advance of the enemy. 



lOi POWERS OF CONGRESS. [1: 8, 12. 

CLAUSE 12. 

THE REGULAR ARMY. 

To raise and support armies, but. no appropriation of money to that use 
shall be for a longer term than two years. 

I, The army. — "War calls for armies. One of the 
great curses of Europe is the burden of enormous stand- 
ing armies in every nation. The expense of supporting 
them is very great, and adds greatly to the taxation; 
large numbers of men are withdrawn from active 
industry at the sacrifice to themselves and to the 
nation of what they could otherwise earn. And the 
presence of a large army is a constant temptation to 
use it in war, and a constant temptation to ambitious 
generals or politicians to usurp authority. 

From this curse we are freed in this country. The 
ocean separates us from any foe we need fear. A stand- 
ing army is only needed to fight the Indian tribes, and 
to provide trained officers in case of war. We have a 
small standing army in time of peace. When war 
comes, we can easily increase our army by volunteering 
or by conscription, and on the return of peace, disband 
these forces again. This has been the constant policy 
of our government. 1 

II. Appropriations for the army. — No appropri- 
ation can be made by Congress for more than two years. 
If Congress could make an appropriation for many 
years in advance, the party temporarily in power might 
fix a large standing army on the country for many 
years. As it is, the people can at any time, through 

1 " Avoid the necessity of those over-grown military establishments, which 
undoi- any form of government are inauspicious to liberty, and which are to 
be regarded as particularly hostile to republican liberty. 11 — Washington's 

11 Address. 



I: 8, 12.] THE REGULAR ARMY. 105 

their representatives in Congress, reduce the army or 
abolish it altogether. In practice, Congress makes ap- 
propriations for the army from year to year. 

III. The command of the army. — The President 
is commander-in-chief of the army. (Art. I, Sec. 2.) 
The general direction of all business pertaining to the 
army is in the War Department, at the head of which 
is the Secretary of War. But the immediate command 
of the army is in the General; and all orders of the 
President or of the Secretary of War are transmitted 
to him to be carried out. 

IV. THE ORGANIZATION" OF THE ARMY. 

In the army the unit of organization is the company. When 
full, a company consists of three commissioned officers, and about 
one hundred enlisted men. But a company often is much smaller. 
In time of peace the companies are reduced in size, and filled up 
again when the army needs to be enlarged. Thus we increase or 
diminish our regular army simply by filling up the companies or 
allowing them to be reduced, without changing the number of 
companies and regiments. Of the enlisted men in a company, from 
nine to thirteen are non-commissioned officers, a First Sergeant, 
four other Sergeants, and from four to eight Corporals. These 
non-commissioned officers are appointed from the best of the men. 

The commissioned officers of a company are a Captain, a First 
Lieutenant and a Second Lieutenant. The highest commissioned 
officer who is able to serve commands the company. If in battle 
all the commissioned officers are disabled, then the highest non- 
commissioned officer able to serve, takes command. But in any 
other case, a commissioned officer from some other company takes 
command temporarily. Captains and Lieutenants are called line 
officers, and all higher officers are called field officers. 

A regiment of infantry is composed of ten companies, a regiment 
of cavalry or artillery of twelve. The officers are a Colonel, a Lieu- 
tenant Colonel, and in an infantry regiment one Major, but in a 
cavalry or artillery regiment three Majors, each of whom commands 
a battalion of four companies. Tli3 highest of these able to serve 
commands the regiment, and if all are disabled, the senior Captain 
(the Captain who has held that rank longest) takes command tern- 



106 POWERS OF CONGRESS. [I: 8, 12. 

porarily. In that case the Captain leaves his company in charge of 
the next highest officer. So also in a cavalry or artillery regiment, 
if a Major has to command a regiment, the senior Captain of that 
battalion commands the battalion temporarily. 

Each regiment has also an Adjutant and several non-commis- 
sioned officers and clerks. Surgeons and chaplains are assigned to 
regiments or to detachments of various sizes to suit the needs of the 
service. 

A Brigade is composed of from three to five regiments, together 
with one or more batteries (that is companies) of artillery, and is 
commanded by a Brigadier General or by the Senior Colonel. 

A Division is composed of from three to five brigades, and is 
commanded by a Major General or by the Senior Brigadier Gen- 
eral. 

An Army Corps is composed of several divisions, and is usually 
commanded by a Major General. 

The whole Army of the United States is commanded by a Gen- 
eral (W. T. Sherman) and Lieutenant General (P. H. Sheridan). 

There are various departments attached to the Army, each with 
its corps of officers. 

1. The Adjutant General's Department. 

2. The Inspector General's Department. 

3. The Bureau of Military Justice. 

4. The Signal Service. 

5. The Quartermaster's Department. 

6. The Subsistence Department. 

7. The Medical Department. 

8. The Pay Department. 

9. The Corps of Engineers. 

10. The Ordnance Department. 

11. And several Post Chaplains. 

During our Civil War, a large number of militia and volunteers 
were called into the service. These were organized substantially as 
given above, except that each regiment, brigade, division and army 
corpa had its own staff, instead of the staff being organized into 
departments, as above stated. 

The following table shows the various ranks of commissioned 
officers in the Army, with the corresponding rank of naval officers : 



8, 13.] 


IHE NAVY. 


Armrj. 


Navy. 


1. General. 


Admiral. 


2. Lieutenant-General. 


Vice- Admiral. 


3. Major-General. 


Rear-Admiral. 


4. 13rigadier-Genoral. 


Commodore. 


5. Colonel. 


Captain. 


6. Lieutenant- Colonel. 


Commander. 


7. Major. 


Lieutenant- Commander. 


8. Captain. 


Lieutenant. 


9. First Lieutenant. 


Master, 


10. Second Lieutenant. 


Ensign. 



io: 



Within these grades, promotions are usually made by seniority; 
that is. when a vacancy occurs, it is filled by promoting the officer 
who stands next in rank, 1 which is determined by seniority of 
commission; that is, the officer who has held that rank the longest 
ranks first, the next next, and so on. 

But in time of war, promotions are frequently made for merit, 
without regard to seniority. Most officers of the regular army are 
educated at the United States Military Academy, at West Point, 
New York. 

CLAUSE 13. 

THE NAVY. 
To provide and maintain a navy. 

I. Our NAVY. — A navy cannot be raised as easily 
as an army, and it is necessary to have a considerable 
navy in order to protect our commerce in all parts of 
the world. A navy is of more use in time of peace than 
an army is, and of less use, generally, in war. It is 
better, therefore, to keep a regular navy, and not to de- 
pend upon a volunteer navy in case of war, as we do 
upon a volunteer army. For the same reason appropri- 
ations for a longer time are not forbidden. They may 
be necessary in building ships. 

1 For the insignia of these various ranks, see Webster's Unabridged Dic- 
tionary. 



10S POWERS OF CONGRESS. [1: 8, 14. 

II. The command of the navy. — The President 
is Commander-in-Chief of the navy as well as of the 
army of the United States (Art. II, Sec. 2). The gen- 
eral direction of all business relating to the navy is in 
the Navy Department, at the head of which is the Secre- 
tary of the Navy. 

III. The organization of the navy. — In the 
navy the unit of organization is the ship. 

Vessels in the United States navy are arranged in four rates 
according to size, besides iron-clad vessels, torpedo boats and tugs. 
Vessels of the first or second rate are generally commanded by Cap- 
tains, those of the third rate by Commanders, and those of the 
fourth rate by Lieutenant Commanders. Each vessel has also a 
number of officers and men according to its size. A squadron of 
several vessels is commanded by a Rear Admiral -or a Commodore. 

The whole navy of the United States is under the general com- 
mand of an Admiral and a Vice Admiral. 

There is also a Marine Corps in connection with the navy. Ma- 
rines are soldiers who serve on board ships or in navy yards. Then- 
organization is similar to that of the army, as far as their small 
numbers allow. 

Most officers of the navy are educated at the United States Naval 
Academy at Annapolis, Md. For the rank of naval officers see 
page 107. 

CLAUSE U. 

ARMY AND NAVY REGULATIONS. 

To make rules for the government anl regulation of the land and naval 

forces. 

I. The power to make rules. — The power to make 
war, and to organize armies and navies, implies also the 
power to rule these armies. Congress therefore has the 
power to make rales for the government of the army 
and navy. These rules together are called military law 
and naval law. These must not be confused with mar- 
tial law. Military law and naval law do not govern 



I: 8, 14.] ARMY AND NAVY REGULATIONS. 109 

civilians, but only soldiers and sailors. Martial law is 
the government by an army of a part of this or an- 
other country held by our armies, while war is going on. 
Military law is the government of armies; martial law 
is the government hy armies. 

II. The army and NA.VT BE&ULATIOBTS. — Congress 
has made rules for the government of the army and 
navy, called the Army Regulations and the Navy Regu- 
lations. These prescribe the duties of every officer, 
soldier or sailor, and provide punishments for every 
offense. For trifling offenses the officer in command 
may reprimand, or put under arrest without trial. But 
no such arrest can be longer than ten days. All seri- 
ous offenses must be tried by Court Martial. A Court 
Martial is organized regularly, and proceeds according 
to regular rules, giving the accused a fair trial, but one 
more summary than in a civil court. 

Soldiers and sailors can be punished for disobeying 
orders, as well as for what would be crimes in the case 
of ordinary citizens. And officers can also be punished 
for conduct unbecoming a gentleman. 1 Punishments 
may extend even so far as death. The President has 
power to pardon, or to reduce the punishment to a 
lighter one. Every officer, soldier and sailor must 
swear allegiance to the United States, and promise obe- 
dience to the rules of the army or navy, as the case may 
be. Every officer must subscribe to these rules, and 
every soldier or sailor must have them read to him. 

1 Officers have been severely punished for such offenses as refusing to pay 
their debts, slandering the wife of a brother officer, etc. 



HO POWERS OF CONGRESS. [1: 8, 15. 

CLAUSE 15. 

THE POWER TO CALL OUT THE MILITIA. 

To provide for calling forth the militia to execute the laws of the Union, 
suppress insurrections and repel invasions. 

I. Who are the militia? — The militia are citizen 
soldiers. The regular army is composed of men whose 
business is to be soldiers, and who do nothing else. 
The militia are citizens who are liable to be called away 
from their regular business to serve as soldiers for a 
short time. By act of Congress, all male citizens, and 
those who have declared their intention to become citi- 
zens, between the ages of twenty and forty-five, consti- 
tute the national forces, and are liable to perform mili- 
tary duty when called out by the President. These 
constitute the unorganized militia, and are not ready 
for service till called out, officered, armed and drilled. 
The organized militia are those men who have been 
formed into companies and regiments by authority of 
State or United States laws, and are officered, armed 
and drilled, and ready to be called out at any time. 

II. Calling out the militia. — The militia may be 
called out for three things: (a) to execute the laws of 
the United States, (b) to suppress insurrections, and (c) 
to repel invasions. Each State may also call out its 
own militia for similar purposes. The President alone 
can call out the militia of the United States, and he 
may call out any number at his discretion, and from all 
the States or from some only, as may be most conven- 
ient. He calls on the Governor of each State for a cer- 
tain number of militia, and it is then the duty of the 
Governors of the States called on, each to call out that 
number of militia. If the States do not furnish their 



1: 8, 10.] TO ORGANIZE THE MILITIA. HI 

militia as called for, the government will draft men 
enough to make up the number. 

The militia have been called out under this clause 
only on three occasions: 

In the Whisky Rebellion of 179J-, the militia of four 
neighboring States were called out to enforce the laws. 
In the War of 1812, the militia were again called out to 
repel invasion, and in the Civil War the militia were 
again called out to suppress insurrection. 

III. Volunteers. — Under Clause 12, the govern- 
ment has always maintained a small standing army. 
At several times the government has also accepted the 
services of volunteer companies or regiments for longer 
or shorter times. These volunteers are not a part of 
the regular army nor are they called out as militia. All 
our great wars have been fought chiefly by the aid of 
volunteers; and in most of our Indian wars volunteers 
have served beside the regular soldiers. 

CLAUSE 16. 

THE POWER TO ORGANIZE THE MILITIA. 

To provide for organizing, arming and disciplining the militia, and for 
governing such part of them as may be employed in the service of the 
United States, reserving to the States respectively, the appointment of 
the officers, and the authority of training the militia according to the 
discipline prescribed by Congress. 

I. State and United States powers over the 
militia. — The States may have their own militia, sub- 
ject to their own laws, and many of them do have such 
militia. (See Amend. II.) 

The militia of each State are organized under the laws 
of that State. But the United States may at any time 
prescribe regulations for organizing, arming and drill- 
ing the militia. But the States carry out these regula- 



112 POWERS OF CONGRESS. [1: 8, 17. 

tions. When the States furnish militia to the United 
States, they usually do it by regiments, with officers 
appointed by the State. These regiments are mustered 
into the United States service, and are then organized 
into brigades, divisions and army corps by the United 
States, the President appointing the officers of the 
brigades, divisions and army corps. 

When volunteers or militia are mustered into the 
service of the United States, they are subject to the 
Army Regulations like the regular soldiers. 

II. The value of citizen soldiers. — The United 
States does not depend for its defense upon professional 
soldiers, who make a business of war, but upon the 
courage and patriotism of all its citizens. As we are 
free from any serious danger of foreign invasion, we do 
not even need to have our citizens trained in the use of 
arms and in military manoeuvers. And therefore we 
have paid little attention to the organization and train- 
ing of our miKtia, perhaps too little attention. But 
our Civil War showed what a nation of citizens un- 
trained in war can do in time of need. In four years, 
over two and a half million men were mustered into 
the armies of the United States, and nearly all as militia 
or volunteers. The navy of the United States may be 
increased in time of war by volunteering, but not. by 
calling out the militia or by drafting. 

CLAUSE 17. 

THE POWER OF EXCLUSIVE LEGISLATION". 

To exercise exclusive legislation in all cases whatsoever, over such district 
(not exceeding ten miles square) as may, by cession of particular States, 
and the acceptance of Congress, become the seat of government of the 
United States, and to exercise like authority over all places purchased 
by the consent of the legislature of the State in which the same shall 
be, for the erection of forts, magazines, arsenals, dockyards, and other 
needful buildings. 



1: 8, 17.] OF EXCLUSIVE LEGISLATION. 113 

I. The extent of this power. — Within the 
boundaries of the States, Congress exercises only a lim- 
ited power of legislation. It can legislate only on those 
subjects granted in this section or in other parts of the 
Constitution. Other subjects are either reserved to the 
States to legislate on or are forbidden to both State and 
United States governments. 

But in certain places the United States can exer< 
all the authority which it can exercise in the States. 
and also all the authority which a State can exen 
These places are: 

1. The District of Columbia. 

2. Forts, magazines, arsenals and dockyards in which the juris- 

diction has been ceded to the United States. 

3. Territories. (See IV, 3, 2.) 

4. On board United States men-of-war anywhere. (See page 

99.) 

5. On board United Slates merchant vessels when at sea. 

page 99.) 

6. In the tide waters of the coast, so far as they are not under 

the jurisdiction of the several States. (See page 9* | 

Over these places the United States exercises exclusive 
jurisdiction, and Congress has therefore the exclusive 
power of legislation there. 

II. The District of Columbia. — The States of 
Maryland and Virginia ceded to the United States in 
1790, a tract of country just ten miles square (or a 
hundred square miles in area). This was named the 
District of Columbia, and in 1800 the seat of govern- 
ment was moved there. In 1846, that part of the 
District of Columbia lying southwest of the Potomac, 
which had been given by Virginia, was ceded back to 
Virginia. The District of Columbia now contains 
sixty-six square miles. 

H 



114 POWERS OF CONGRESS. [1: 8, 17. 

The city of Washington, in the District of Columbia, 
is the Capital of the United States. There was no city 
or village at which the capital was located, but the city 
of Washington was created to be the capital. Its name 
was given it to perpetuate the memory of the greatest 
American, who was " first in war, first in peace, and 
first in the hearts of his countrymen." It is not far 
from his own home, at Mount Vernon, where he is 
buried. 

III. Taxation without representation. — The 
District of Columbia can be taxed by Congress, but it 
is not entitled to represention in Congress, nor can its 
people vote for Presidential electors. This inequality 
could only be obviated by ceding the District back to 
Maryland or erecting it into a separate State. And 
this ought not to be done, because the United States 
needs to have absolute control of its capital. 

IY. Why congress has exclusive jurisdiction. — 
The government of the United States should be supreme 
at its capital if anywhere. If the capital of the United 
States were within any of the States, it would be sub- 
ject to the mixed jurisdiction of the State and of the 
United States, and this would lead to endless complica- 
tions and difficulties. 1 

V. Forts, navy yards and arsenals. — The 
United States can also have jurisdiction over the places 

i An illustration of the troubles that would arise if the capital were 
within a State, was furnished at the close of the Revolutionary war, when a 
small body of troops mutinied because they had not been paid, and marched 
into Philadelphia to demand their pay of Congress. As there were no legal 
troops near, Congress had to call on Pennsylvania for militia or police to 
defend them against the mutineers. This the government of Pennsylvania 
weakly hesitated to do. Thereupon Congress removed to Trenton, in New 
Jersey, for safeiy. Should such an occasion happen in Washington now, 
the President could at once call out every able-bodied man in the District 
to defend the government, without waiting for the slow movements of State 
governments to furnish him militia. Af it is, all questions of jurisdiction 
are avoided. In the District of Columbia there is butone jurisdiction, and 
that belongs to the United States. 



1:8, 18.] INCIDENTAL POWERS. 115 

needed for forts, arsenals, navy yards and other public 
buildings. But the consent of the legislature of the 
State in which these buildings are situated, must first 
be obtained. 

In giving this consent, State legislatures have gener- 
ally reserved the right to serve all State processes, civil 
and criminal, in these places. The object of this is, that 
these places may not be a sanctuary for criminals, who 
otherwise could not be arrested by State authority if 
they escaped into these places. 

We must distinguish between the property of the 
United States and the jurisdiction of the United St 
Forts, arsenals and navy yards are the properly of the 
United States and are also in its jurisdiction. In the 
District of Columbia, the United States has property 
only in the public buildings and grounds; but it 
jurisdiction over all the District. In the case of public 
lands unsold, within a state, the United States has 
property, but has no more jurisdiction than anywhere 
else in the State. When the United States owns prop- 
erty, it owns it as a private individual does, except that 
it cannot be taxed by a State. 

CLAUSE 18. 

INCIDENTAL POWERS. 

To make all laws which shall be necessary and proper for carrying into exe- 
cution the foregoing powers, and all other powers vested by this Constitu- 
tion in the Government of the United States, or in any department or 
officer thereof. 

I. These powers incidental. — This clause gives 
Congress the power not only to pass such laws as have 
been expressly named in this section, but any laws 
which may be necessary and proper for carrying into 
execution these express powers, and also any laws which 



116 POWERS OF CONGRESS. [1: 8, 18. 

may be necessary and proper for carrying into execution 
any other powers vested by the Constitution in any 
part of the government. For instance, the power in 
Clause 7, to establish post offices and post roads, is a 
power expressly granted to Congress. But in order to 
carry this power into execution, it is necessary and 
proper to protect the mail. Congress has therefore 
assumed under this clause the additional power to pass 
laws punishing robbery of the mails, and requiring all 
persons who handle the mail in any way to be under 
oath, and requiring postmasters to give bonds. Con- 
gress has, also, under this clause, created a Post Office 
Department, with some sixty thousand post offices and 
postmasters. But in carrying out Article II, Sec. 2, 
Congress has by law vested the appointment of these 
officers partly in the President with the consent of the 
Senate, and partly in the Postmaster General. 

II. Why incidental powers are granted. — The 
powers granted to Congress by this cjause are incidental 
or implied powers, not expressly given by any part of 
the Constitution. This clause was opposed by a large 
party led by Patrick Henry, for fear that Congress 
should find an excuse in it to override the rights of the 
States, and the Tenth Amendment was j>assed to quiet 
them. But experience has shown that the States still 
retain all the rights that they need, and that the Fed- 
eral government has not grown into a despotism be- 
cause of this clause. 

The framers of the Constitution claimed that this 
clause only asserted in words what would have been 
implied in any case. They claimed that it was only 
common sense that a government should be able to do 
what it was established on purpose to do. And they 
claimed that it was a sound rule of law, admitted by all 



1:8, 18.] INCIDENTAL TOWERS. 117 

judges, that when a power was granted, liberty to do all 
that was needed to carry it into effect was also granted 
(see Amend. X). Experience has shown that the very 
political parties which wished to limit the power of 
Congress and the President, have been when in power 
the very ones to do things not expressly granted in the 
Constitution. They were more sensible in their prac- 
tice than in their theories. This Constitution ere;/ 
real national government, and this government must 
have national powers. Some of these needful powers 
can be foreseen, and are named in this section and i 
where. But it was impossible to see all the emergencies 
that might arise, and therefore this general power i- 
also given. 

III. What laws congress may pass. — Congr 
has a right to make any laws, (1) which are expressly 

authorized by the Constitution; (2) or which are implied 
in the express powers given to Congress, and necessary 
to carry them out; (3) or which are necessary to carry 
out any powers vested in the United States, or in any 
United States officer; (4) or which are necessary for the 
common defense or the general welfare. The enacting 
clause gives the power to the government to provide for 
the common defense, and to promote the general wel- 
fare. 

But Congress cannot make laws on subjects, (1) which 
are expressly prohibited to Congress; (2) or which are 
expressly reserved to the States; (3) or which have not 
been granted to either the States or National govern- 
ment. 

IV. Powers exercised under this clause. 

The following powers are some of those which have been exer- 
cised by Congress under this clause: 
1. The slave trade has been prohibited. The Constitution pro- 



118 POWERS OF CONGRESS. [1: 8, 18. 

vides that Congress shall not prohibit it before 1808 (Art. I, sec. 9). 
The necessary implication is that it can after that date. 

2. The writ of habeas corjms has been suspended in time of war. 
The Constitution provides that that writ shall not be suspended ex- 
cept in case of rebellion or invasion (Art. I, sec. 9). The necessary 
implication is that it may be suspended in that case. 

3. Congress has erected light houses, as a power implied in the 
right to regulate commerce. 

4. The United States has acquired territory by purchase and by 
conquest, and has governed that territory or formed states out of it. 
No express authority is given in the Constitution for this. When 
President Jefferson bought Louisiana, he is reported to have said 
that he stretched the Constitution till it cracked. But he forgot 
that Congress could do anything necessary for the defense and wel- 
fare of the nation. Texas was also annexed, and other great addi- 
tions to our territory have been made by conquest and purchase 
under the same power. 

5. The United States punishes offenses committed on board ships 
of war, even in port, and by persons not in the military or naval 
service. The reason is, that a ship of war is by the law of nations 
always in the jurisdiction of the nation to which it belongs. 

6. All persons in the United States service are exempt from State 
control while engaged in their duties as officers or employees of the 
United States. Congress has not even made any law on this sub- 
ject, but the Supreme Court has decided that this is a necessary 
incident of the general sovereignty of the United States. 

And the following implied powers have been exercised by Con- 
gress, but have been opposed as unconstitutional by powerful 
political parties: 

1. National banks have been created. 

2. Paper money has been issued by the government as a war 

measure. 

3. International improvements have been made, such as 'roads 

and canals, and making rivers navigaole. 
' 4. An embargo was laid on all commerce once only. 

5. Most of the "reconstruction measures" at the close of the 
Civil war. 

Of the great political parties, the Federalists, the Whi s, and the 
Republicans (the present party), have been inclined to give the 



1:8,18.] INCIDENTAL POWERS. 1 19 

national government as much power as possible under this clause. 
And the anti- Federalists and the Republicans (the old party) and 
the Democrats have been inclined to give it as little pos- 
sible. 
V. Additional powers given to congress in 

OTIIER PARTS OF THIS CONSTITUTION. 

In addition to the powers named in this section, many other 
powers arc either expressly given to Congress, or plainly implied in 
other parts of the Constitution. 1 A list of these powers is given 
below. Those are all legislative powers, and require the action of 
the President unless otherwise specified. 

A. Powers relating to congress. — 1. The power to «> 
Hon Representatives among the several States according to their 
population, and to fix the number of Representatives, giving 
least one to each State, and not more than one to every thirty thou- 
sand population (I, 2, 3), and the power to reduce the representation 
of a State for denying the right of suffrage to male citizens over 
twenty-one, except for crime or treason (Amendment XIV, 2). 

2. The power to regulate elections for Senators and Representa- 
tives, in regard to the time, place and manner of holding such elec- 
tions, except as to the place of choosing Senators (I, 4, 1). 

3. The power to fix the time of the annual meeting of Congress 
(I, 4, 2). 

4. The power to adjourn. This is not done by law but by a con- 
current resolution, and does not require the action of the President. 
But either House alone may by resolution adjourn for not more 
than three days at a time. The power to adjourn includes the 
power to adjourn to some particular time or place. But neither 
House alone can change the place of sitting. 

5. The power to fix the salary of Senators and I 

together with the salary of all officers and employees of either 
House (I, 6, 1). 

B. Powers relating to the executive. — 1. The power 
to fix the dag of choosing Presidential Electors, and of their choos- 
ing President and Vice President (II, 1, 4), with the limitation 
that the day shall be uniform throughout the United States. 

2. The power to canvass the votes of the President and Vice 

i A.B these are discussed in their proper places, a brief mention only is 
here given to each. 



120 POWERS OF CONGRESS. [I: 8, 18. 

President (Amendment XII). This is the power implied in the 
words, " The votes shall then be counted." Congress has assumed 
the power under these words to canvass the votes and determine 
what votes shall be received, and what thrown out. The right of 
Congress to act as a canvassing board has been disputed; but the 
practice is now firmly established. 

3. The power to determine ivliat officer shall act as President 
when there is no President or Vice President (II, 1, G.) Such of- 
ficer is an acting President only, and holds only till the disability 
of the President or Vice President is removed, or a President can be 
elected. 

4. The power to fix the salary of the President, but not to increase 
or diminish it during his term of office (II, 1, 7.) 

5. The power to regulate the civil service of the United States 
(II, 2, 2.) This includes the power to establish or abolish offices, 
and to fix salaries and duties of officers, and to regulate the manner 
of appointment of inferior officers. 

6. The power to control the reception of titles and presents by of- 
ficers oftXe United States (I, 9, 7). No officer of the United States 
can accept any title or present from any foreign king or state, ex- 
cept with the consent of Congress. 

C. Powers relating to tiie courts. — 1. The power to fix 
the salaries of judges of the Supreme Court and of all other United 
States courts (III, 1, 1). 

2. The power to regulate the appellate jurisdiction of the Supreme 
Court (III, 2, 2). The original jurisdiction of the Supreme Court 
is fixed in the Constitution (III, 2, 2). 

3. The power to regulate the jurisdiction of inferior courts. A 
power implied in the power to organize inferior courts (I, 8, 9, 
and III, 1). 

4. The power to fix the place of trial for crimes committed outside 
of any State {III, 2, 3). 

5. The power to declare the punishment for treason, but under 
the limitation that no attainder of treason shall work corruption of 
blood or forfeiture, except during the life of the person attainted 
(HI, 3, 2). 

G. The power to forbid jury trials in lawsuits, where twenty dol- 
lars or less is involved (Amendment VII). 

D. Powers relating to the states. — 1. The power to 
allow States to levy duties, but the net produce of such duties shall 



1: 8, 18.] INCIDENTAL POWERS. 121 

be paid into the United States treasury, and the State laws on that 
subject shall be subject to the revision and control of Congress 
(I, 10, 2). 

2. The power to allow or forbid States to keep armies and navies 
in time of peace (I, 10, 2). 

8. The power to allow or forbid States to make compacts with 
other States or with foreign powers (I, 10, 2). 

4. The power to allow or forbid States to engage in tear (I, 10, 2). 

5. The power to prescribe the manner of proving the public rec- 
ords of one State in another. This must be by general law (TV, 1). 

6. The power to admit new States into the Union, with the limita- 
tion that no new State shall be formed within the boundaii 
another State, or by the junction of two States or parts of States, 
without the consent of the legislatures of the States concerned. 

7. The power to guarantee each State a republican form of gov- 
ernment (IV, 4). 

8. The power to propose amendments to the Constitution, which 
become parts of the Constitution by ratification of three-fourths of 
the States (V). For this the President's signature is not required. 

E. Legislative powers. — 1. The power to prohibit the slave 
trade after 1808 (I, 9, 1). 

2. The power to suspend the writ of habeas corpus when in cases 
of rebellion or invasion the public safety may require it (I, 9, 2). 

3. The power to make all appropriations of money from the 
treasury. This implies also the power to investigate all expendi- 
tures of money by any department of the government (T, 9, 6). 

4. The jjoicer to govern the territory of the United States, and to 
dispose of the public land and other property belonging to the 
United States (IV, 3, 2). 

5. The power to enforce the provisions of Amendments XIII, 
XIV, and XV, by appropriate legislation (Amendments XIII, 2; 
XIV, 5; XV, 2). 



122 



PROHIBITIONS ON CONGRESS. 



[1:9. 



SECTION 9. 

PROHIBITIONS ON CONGRESS. 

ANALYSIS OF THIS SECTION. 
(And other prohibitions on Congress in other parts of this Constitution.) 



I. Financial 



II. Commercial. 



III. Relating to 
U. S. Officers 



IV. Relating to 

the States. 



1. To draw mcney from the treasury 

otherwise than by an appropri- 
ation bill 1,9,6 

2. To make appropriations for th3 

army for more than two years . . I, 8, 12 

3. To levy direct taxes except in 

proportion to population I, 9, 4 

4. To appropriate money without 

publishing accounts 1,9,6 

5. To question the validity of the 

public debt Am. XIV 

6. To pay rebel debts or claims for 

slaves Am. XIV 

1. To prohibit the slave trade before 

1808 I, 9,1 

2. To levy export duties I, 9, 5 

3. To discriminate against the com- 

merce of particular States I, 9, 6 



1. To increase or diminish the Pres- 

ident's salary during his term 

of office II, 1,7 

2. To diminish the salary of U. S. 

Judges during their continu- 
ance in office Ill, 1, 1 

3. To impose religious tests for 

office VI, 3 

1. To erect new States out of parts 

of States without the consent 

of the States concerned IV, 3,2 

2. To exercise powers reserved for 

the States Am. X 



1:9,1.] 



THE SLAVE TRADE. 



123 



Relating to 

PB BSO N A I, 
LlBBBTY 



1. To suspend writ of habeas corpus 

except in war 1,9,2 

2. To pass a bill of attainder I, 9, 3 

3. To pass an ex post facto law — I, 9, 3 

4. To erect a titled aristocracy I, 9, 8 

5. To deny the right of trial by jury, III, 2, 8 
G. To make anything treason except 

rebellion Ill, 3, 1 

7. To make an attainder of treason 

work corruption of blood or 
forfeiture except for Jifc... .... Ill, 3, 2 

8. To establish or prohibit religion. Am. I 

9. To abridge the freedom of speech 

and of the press Am. I 

10. To abridge the right of assembly 

and petition Am. I 

11. To suppress the militia Am. II 

12 Toquarter soldiers, except in war Am. Ill 

13. To authorize unreasonable 

searches and seizures Am. II 

14. To refuse a fair trial to accused 

persons Am's V and VI 

15. To take private property for pub- 

lic use without just compensa- 
tion Am. V 

16. To refuse trial by jury in impor- 

tant civil suits Am. VII 

17. To impose excessive bail, fines 

and punishments Am. XIII 

18. To deny other personal rights 

not enumerated Am. IX 

19. To establish slavery or serfdom Am. XIII 

20. To deny negroes the right to vote, Am. XV 



CLAUSE 1. 



THE SLAVE TRADE. 



The migration or importation of such persons as any of the States now 
existing shall think proper to admit, shall not be prohibited by the Con- 
gress prior to the year one thousand eight hundred and eight, but a tax 
or duty may be imposed on such importation, not exceeding ten dollars 
for each person. 

The slave trade. — The United States has the 
honor of being the first nation to take steps to abolish 
the African slave trade. When this Constitution was 



124 PROHIBITIONS ON CONGRESS. [I: 9, 2. 

adopted, ten States out of the thirteen had already pro- 
hibited the slave trade. But North Carolina, South 
Carolina and Georgia insisted on some guarantee that 
their slave trade should not be disturbed. It was finally 
compromised by this clause, which gave them twenty 
years in which to import negroes from Africa. 

The slave trade to foreign countries was prohibited in 
1794, and the importation of slaves was prohibited in 
1807, to take effect January 1, 1808, the very first day 
when it was constitutional to do so. 

Great Britain abolished the slave trade in 1807, a few 
days after our act was passed. 

The framers of the Constitution were ashamed to use 
the words "slave 1 ' or "slavery, 1 ' and therefore used the 
word " persons " instead. 

Slavery is now abolished by the thirteenth amend- 
ment, and of course the slave trade with it is thus pro- 
hibited by the Constitution. 

CLAUSE 2. 

THE WRIT OF HABEAS CORPUS. 

The privilege of the writ of habeas corpus shall not be suspended, unless 
when in cases of rebellion or invasion the public safety may require it. 

I. Object of the writ. — The writ of habeas cor- 
pus is intended to release any person illegally impris- 
oned. Any person who is imprisoned without proper 
warrant or indictment, can sue out a writ of habeas cor- 
pus, before any judge or court commissioner. Unless 
the officer who has him in charge can show a legal war- 
rant or other authority, the prisoner is discharged. 
The writ of habeas corpus is a guarantee of personal lib- 
erty, against unjust imprisonment by officers. 

The words " habeas corpus " are the first two words 
of the old Latin form of the writ, from which the writ 
is named. 



I: 9, 3.] ATTAINDER AND EX TOST FACTO LAWS. 125 

II. Suspension of the writ. — When the writ of 
habeas corpus is suspended, this safeguard against arbi- 
trary and illegal arrest is laid aside for the time being. 
To suspend the writ of habeas corpus, means to give 
government officers power to arrest and imprison any 
one without a regular warrant or indictment. 

The writ can only be suspended when the public 
safety requires it, in case of rebellion or invasion. Mar- 
tial law then takes the place, partly or wholly, of civil 
law (see page 270). Persons are then arrested, tried and 
punished by martial law, and no wfit of habeas corpus 
can save them. This is a necessity of war, when the 
public safety overrides all other considerations. 

III. Disputed questions. 

1. Who has power to suspend the writ ? All agree that Congress 
has the power. But it is claimed by many that no one else has. 
The question whether the President or other executive officers have 
the right to suspend the writ, has never been decided by the courts. 
As a fact, the writ has been suspended several times by command- 
ing generals and by the President. 

2. Where can the writhe suspended? Only in that part of the 
country actually involved in the war. During the Civil War a man 
named Mulligan was arrested for treasonable conspiracy in Indiana, 
tried by a court martial and condemned to be executed. But the 
Supreme Court released him on a writ of habeas corpus, on the 
ground that Indiana was not the seat of war, and therefore martial 
law could not lawfully be proclaimed there. His offense was one to 
be tried by the civil courts, and liable to a less punishment than 
that of death. 

CLAUSE 3. 
bills of attainder and ex post facto laws. 

No bill of attainder or ex post facto law shall be passed. 

I. Bills of attainder. — A bill of attainder is a law 
inflicting punishment without trial. It was a common 
practice in England, some centuries ago, for Parliament 



126 PROHIBITIONS ON CONGRESS. [I: 9, 0. 

to pass bills of attainder. They answered all the ends 
of impeachment and much more. It was usual in such 
bills to prescribe the punishment of death, confiscation 
of property, deprivation of all honor and titles, and cor- 
ruption of blood, so that the descendants could not 
inherit property through the person attainted. 

Such an act is an easy means of revenge upon politi- 
cal opponents, and is generally used for that end. It 
gives the accused no regular trial. It punishes for acts 
that are not prohibited by law, it gives the accused lit- 
tle or no means of defense, and it punishes his family 
as well as himself. The power to pass bills of attainder 
is therefore wisely forbidden (a) to Congress, and (b) to 
the State legislatures (section 10). 

Persons who offend against the law may still be tried 
in the courts, and political offenses committed by public 
officers may be tried by impeachment, under careful 
limitations. 

This wise provision of our Constitution has taken the 
sting out of our political contests. 

II. Ex post facto laws. — An ex post l facto law is 
one which punishes not only those who may after- 
wards break it, but those who have already done any- 
thing contrary to it, or one which adds a greater 
punishment to crimes already committed. This ap- 
plies only to criminal laws and not to civil laws. A 
civil law may be retrospective, and not violate this 
clause of the Constitution. It is plainly unjust to 
punish any one for breaking a law which was not in 
existence when he did the act. This is also forbidden 
to the States as well as to the United States (section 10). 



I: 9, 5.] DIRECT TAXES — EXPORT DUTIES. 127 

CLAUSE 4. 

DIRECT TAXES. 

No capitation, or other direct tax shall be laid, nnlesfl in proportion to the 
census or enumeration hereinbefore directed to be taken. 

Direct taxes in proportion to population. — A 
capitation tax is a poll tax; a fixed sum on each person 
liable to it, without regard to his wealth or poverty. 

According to section 2 of this Article, the represent- 
ative population was to be made up by excluding wild 
Indians, and counting only three-fifths of the slaves, 
but counting all the free population. But by the Four- 
teenth Amendment, the representative population con- 
sists of the whole number of persons in each State, 
excluding uncivilized Indians. This clause provides 
that all direct taxes must be levied on the State in pro- 
portion to this representative population. No poll tax 
has ever been levied by the United States, and only a 
few direct taxes. 

CLAUSE 5. 

EXPORT DUTIES. 

No tax or duty shall he laid on articles exported from any State. 

I. Export duties forbidden. — Export duties are 
taxes laid on articles carried out of the country. It is 
the practice in many countries to tax both imports and 
exports. If exports are taxed, their price will be raised, 
and the products raised or manufactured in this coun- 
try cannot be so profitably sold in foreign countries, 
and perhaps cannot compete at all with the same pro- 
ducts from foreign countries. An export duty usually 
tends to discourage home production. But import 
duties may be used so as to encourage home production, 



138 PROHIBITIONS ON CONGRESS. [1: 9, 6. 

or at least not to harm it. For this reason, export 
duties are forbidden by this section-. 

II. A DISPUTED QUESTION" — ARE ALL EXPORT DUTIES 
FORBIDDEN BY THIS CLAUSE ? 

Probably they are. But it is claimed by some that the intention 
of this clause is to prevent a discrimination against any one or more 
States, by export duties levied in those States alone. They claim 
that an export duty levied equally throughout the Union is not for- 
bidden by this clause. 

The courts have never been called upon to decide this case. But 
in all probability, they would decide any export duty whatever to 
be unconstitutional. For an export duty on any one article is a 
tax upon the productions of a few States for the benefit of the rest. 
Thus, an export duty on cotton would be a tax upon the produc- 
tions of the Gulf States; an export duty on wheat and beef would 
be a tax on the productions of the Interior States, and an export 
duty on manufactured goods would be a tax on the industry of the 
Eastern and Middle States. 

CLAUSE 6. 

COMMERCIAL RESTRICTIONS. 

No preference shall be given by any regulation of commerce or revenue to 
the ports of one State over those of another; nor shall vessels bound 
to or from one State, be obliged to enter, clear, or pay duties in another. 

Commercial restrictions forbidden. — This clause 
makes commerce entirely free between the States, and 
makes unlawful any preference of the commerce of one 
State over that of another. To " enter " a port is to 
land the whole or a part of the cargo there; to " clear 
from " a port is to take in the whole or a part of the 
cargo there. 

While we were British colonies, the British govern- 
ment had put all sorts of restrictions on the commerce 
of the colonies, in order to favor British merchants at 
the expense of the colonies, and this was one cause of 
the Revolutionary War. This clause prevents any such 
restrictions or distinctions between the States. 



I: 9, 7.] APPROPRIATIONS AND ACCOUNTS. 120 

CLAUSE 7. 

APPROPRIATIONS AND ACCOUNTS. 

No money shall be drawn from the treasury, but in consequence of appro- 
priations made by law; and a regular statement and account of the re- 
ceipts and expenditures of all public money shall be published from 
time to time. 

Appropriations and amounts required. — This is 
to prevent frauds on the treasury. It does not prevent 
all frauds; but it makes them much more difficult. A 
fraud now is liable to be detected, not only by the exec- 
utive officers, but also by Congress and by the people, for 

1. Xo money can be paid out except on an appropri- 
ation passed in the form of a law. 

2. And all accounts of the government must be pub- 
lished for the information of the people. 

Appropriations are voted by Congress each winter 
for the year ending June 30. The head of each De- 
partment furnishes an estimate of what will be needed 
in his department for the ensuing year. These esti- 
mates must go into details, and show how much is 
needed for each item of expense. These estimates are 
carefully considered in each House of Congress, and are 
frequently cut down. A separate appropriation bill is 
generall3 r made for each branch of the service. These 
appropriation bills usually originate in the House of 
Representatives. They are frequently amended in the 
Senate, and they may be vetoed by the President. 

The account of the receipts and expenditures of the 
government are published everj 7 year in the form of a 
report of the Secretary of the Treasury. 
I 



130 PROHIBITIONS ON CONGRESS. [1: 9, 8. 



CLAUSE 8. 

TITLES OF NOBILITY. 

Xo title of nobility shall be granted by the United States; and no person 
holding an office of profit or trust under them, shall, without the consent 
of the Congress, accept of any present, emolument, office, or title of any 
kind whatever, from any king, prince, or foreign State. 

I. NO TITLES GRANTED BY CONGRESS. — One of the 

fundamental principles of our government is, that all 
men are equal before the law. We cannot have a titled 
aristocracy without violating this principle. It is true 
that Ave cannot regulate social intercourse and make 
people treat one another as equals in society. Color, 
ancestry, office, wealth, and culture, will always create 
social distinctions. But before the law, every citizen of 
the United States is equal with every other. No titles 
of nobility give a few citizens an invidious distinction 
above the rest. 

II. Foreign titles, oefices and presents.— This 
clause also prohibits United States officers from accept- 
ing titles, offices or presents from foreign nations. 
These might easily become bribes to officers to betray 
their country. Such things have frequently been done 
in the history of other republics, and have periled their 
liberties. In case such a present is not meant as a 
bribe, it is easy to secure the consent of Congress to its 
being received. 

It is a usual courtesy of sovereigns to exchange pres- 
ents. When the President receives such a present from 
a foreign sovereign, it is not meant for him as an indi- 
vidual, but for him as the head of our nation for the 
time being. Such presents are accepted, and kept as 
the property of the United States. If courtesy requires 
a present in return, it is voted by Congress. 



1: 9, 8.] - TITLES OF NOBILITY. 131 

III. What is not prohibited by this clause. — 
1. Officers of the several States are not prohibited by 
this Constitution from receiving titles and presents from 
foreign powers; but they are generally prohibited by 
the State Constitutions. 2. Citizens of the United 
States who do not hold office are not prohibited from 
accepting titles, offices or presents from foreign - 
ereigns. And several Americans have accepted office 
and received honors in foreign countries. These honors 
have heen either for services rendered to those conn: 

or for services rendered to the cause of science. 

An amendment was proposed hy Congress in 1811, to 
prevent citizens of the United States taking titles, 
offices or presents from foreign sovereigns, but it has 
never heen ratified by the State legislatures. (See page 
251). 

IV. Additional prohibitions ox congress. 

Besides the things prohibited in this .section, the following things 
are expressly prohibited to Congress in other parts of the Consti- 
tution: 

1. To make any appropriation of money for the army for a longer 
term than two years. (I, 8, 12.) 

2. To increase or diminish the salary of the President daring: the 
period for which he is elected. (II, 1, 7.) 

3. To diminish the salary of judges during* their continuance in 
office. (Ill, 1.) 

4. To make an attainder of treason work corruption of blood or 
forfeiture except during the life of the person attainted. (Ill, 3, 2.) 

5. To erect new States out of parts of States without the consent 
of the States concerned. (IV, 3, 2.) 

6. To impose religious tests for office. (VI, 3.) 

7. To make any law respecting an establishment of religion, or 
prohibiting the free exercise thereof, or abridging the freedom of 
speech or of the press, or the right of the people peaceably to 
assemble and to petition the government for a redress of grievances. 
(Am. I.) 

8. To make laws infringing any of the personal rights guaranteed 



132 PROHIBITIONS ON CONGRESS. [1: 9, 8. 

in the first eight amendments. In all these amendments, except 
the first, Congress is not mentioned by name. The intention is to 
forbid not only Congress, but every branch of the government, legis- 
lative, executive and judicial, from infringing these rights. 

9. To exercise powers not given it by the Constitution expressly 
or by implication. (Am. X.) 

10. To re-establish slavery. (Am. XIII.) 

11. To question the validity of the public debt. (Am. XIV.) 

12. To pay rebel debts or claims for slaves. (Am. XIV.) 

13. To deny or abridge the right of citizens of the United States 
to vote on account of race, color, or previous condition of servitude. 
(Am. XV.) 



I: 10.] 



PROHIBITIONS OX THE STATES. 



SECTION 10. 



PROHIBITIONS ON THE STATES. 

ANALYSIS OF THIS SECTION. 

(And of other prohibitions, expressed or implied in the Constitution.) 

1. To make alliances 

2. To send out privateers 

3. To coin money 

4. To issue paper money, or make 
anything but gold or silver 
legal tender 

5. To pass bills of attainder 

6. To pass ex past facto laws 

7. To pa<s laws impairing the ob- 
ligation of contracts 

8. To grant titles of nobility 



I. Absolute 



II. Implied 



I, 
I. 
I, 


10,2 
10,2 
10,2 


I. 

I, 

1, 


10,2 
10,2 
10,2 



I, 10, 2 
I, 10, 8 



IV, 



IV, 8, 



IV. 



9. To deny the citizens of other 
States the privileges of citi- 
zens 

1 '. To refuse to give up persons 
charged with crime In other 
States 

11. To refuse to give up runaway 

slaves 

12. To re-establish slavery Am. XIII 

13. To abridge the privileges or 

immunities of citizeus of the 

United States Am. XIV 

14. To deprive any person of life, 

liberty, or property, without 

due process of law Am. XIV, 1 

15. To deny any person within its 

jurisdiction the equal protec- 
tion of the laws Am. XIV, 1 

16. To fill offices with unpardoned 

rebels Am. XIV, 3 

17. To assume the rebel debt or 

claims for the loss of slaves. Am. XIV, 4 

18. To deny negroes the right to 

vote 

19. To interfere with the exer- 

cise of any authority be- 
longing to the U. S 

20. To interfere with the prop- 

erty of the U. S. by taxa- 
tion or otherwise 

21. To lower the value of U. S. 

property by taxation 



Am. XV 



c 

II 



134 PROHIBITIONS ON THE STATES. [I: 10, 1. 



o 
bo 39 

fc S 



III. Conditional . 



1. To levy duties ou imports and 

exports I, 10,2 

2. To impose tonnage duties I, 10, 2 

3. To keep a standing army or 

navy I, 10, 2 

4. To make agreements or com- 

pacts with other States or 

foreign powers I, 10,2 

5. To engage in war I, 10, 2 



CLAUSE 1. 
ABSOLUTE PROHIBITIONS. 



No State shall enter into any treaty, alliance, or confederation; grant letters 
of marque and reprisal; coin money; emit bills of credit; make any- 
thing but gold and silver coin a tender in payment of debts; pass any 
bill of attainder, ex post facto law, or law impairing the obligation of 
contracts, or grant any title of nobility. 

I. To make alliances. — The States are forbid- 
den to enter into any treaty, alliance, or confederation. 
The power to make treaties is a sovereign power, and is 
rightly reserved for the United States. If the States 
could make separate treaties and alliances, there would 
soon be an end to the Union. The way would be open 
for foreign intrigues. Some States would ally them- 
selves with one nation, and some with another; and 
when these foreign nations were at war. with one 
another, they would be drawn into the war on opposite 
sides. It would be to the interest of foreign nations to 
foment every sectional difference; and we should have 
a civil war on our hands every few years, even if we 
did not split into three or four separate nations. 

II. To issue letters of marque and reprisal. — 
If a State could authorize privateers it could easily in- 
volve us in difficulties or war with foreign nations. 
Under the Articles of Confederation, each State could 
issue letters of marque and reprisal. But it is here 
.wisely prohibited to the separate States. 



I: 10, 1.] ABSOLUTE PROHIBITIONS. 135 

III. To coin" money. — The power to coin money is 
given to the United States in section 8, and is here 
taken from the States. It is an attribute of sovereignty, 
by all nations reserved for the sovereign power. That 
sovereign power in this country is the United States, not 
the several States. 

Another reason is to secure a uniform currency all 
over the United States. If each State could coin money 
there might be as many different sets of coins as there 
were States, and there would be certain to be several dif- 
ferent sets. Such a state t>f things would be 7ery in- 
convenient for business. Therefore the power to coin 
money is reserved to the United States, and prohibited 
to the several States. 

IV. To issue paper money. — To " emit bills of 
credit " means to issue paper money. The same rea- 
that make it best to prohibit State coinage, also make it 
best to prohibit State paper money. 

Another reason is that paper money is so easily made. 
and so liable to inflation, and therefore to depreciate in 
value, that the power to issue is a dangerous power to 
give a government. Recent experience had shown the 
framers of the Constitution the dangers of paper money. 
During the Revolutionary War the United States issued 
great quantities of paper money, which rapidly fell to 
almost nothing in value and was never redeemed. This, 
perhaps, was necessary to raise money in war. But the 
States after the war issued great amounts of paper 
money, which they could not redeem. To prevent this 
in the future, this clause was inserted in the Constitu- 
tion. 

No State can issue paper money, whether it is made 
a legal tender or not; but State bonds are not to be 
considered as paper money. But a State could, until 



136 PROHIBITIONS ON THE STATES. [I: 10, 1. 

1S63, charter banks which should issue paper money, 
which people could take or not as the} 7 chose. Since 
then the United States has assumed its prerogative on 
this subject. It has taxed the old State banks out of 
existence; it has created a system of National banks; 
and it has issued paper money, as a war measure, and 
made it a legal tender. The supreme court has decided 
that the United States cannot constitutionally issue 
paper money, except as a war measure. 

V. To MAKE ANYTHING BUT GOLD OR SILVER LEGAL 

tender. — A legal tender is anything which must be 
accepted in payment of debts, when offered. The pres- 
ent paper money of the United States is such a legal 
tender. This power of making something besides gold 
and silver a legal tender, is a part of the power of con- 
trolling the currency which is forbidden to the States. 
But the States have the power to make gold and sil- 
ver legal tender, to any amount. And a State could 
make the silver coin of the United States, which is 
worth considerably less than gold, a legal tender to any 
amount, even though by the United States law it is legal 
tender only in small amounts. 

VI. To PASS BILLS OF ATTAINDER AND EX POST 

facto laws. — Bills of attainder and ex post facto laws 
are forbidden to the States as well as to the United 
States, so that such unjust laws can no more be passed 
anywhere in this country. (See page 126.) 

VII. To PASS LAWS IMPAIRING THE OBLIGATION OF 

contracts. — The States are forbidden to break con- 
tracts by law, but the United States can do it, and has 
done it. For instance, in the case of a bankrupt law, a 
State bankrupt law will operate only upon contracts 
made by its citizens after the law was passed. But a 



I: 10, 1.] ABSOLUTE PROHIBITIONS. 137 

United States bankrupt law will release the bankrupt 
from the legal obligation for debts made before the law 
was passed as well as afterwards. 

But a contract which is for an immoral purpose, or 
which involves an immoral consideration, is never valid, 
and may always be broken. The obligation of these 
contracts is not impaired by the law annulling them. 
for they never had any obligation. 

And a State may prescribe under what conditions a 
contract shall be made, so as to cover future contracts. 
but not past ones. Thus a State may spy what forms 
deeds and mortgages must have in order to be valid, but 
this will only be binding in regard to deeds and mort- 
gages executed after the law was passed. 

These words of the Constitution thus e to the 

United States the power of impairing the obligation of 
contracts, and forbids it to a State. 

VIII. Charters of corporations. 

Two famous decisions of the United States Supreme Court have 
defined the power of States over the charters of corporations. In 
the celebrated case of Dartmouth College against Woodward, in 
which Daniel Webster appeared for the College, that court decided 
that charters are in the nature of contracts between the State and 
the corporation chartered, and therefore that such charters cannot 
be repealed or amended by the State without the consent of the 
corporation. Such corporations are therefore practically perpetual. 

But a recent decision of the Supreme Court in regard to the rail- 
road laws of some Western States, allows the State the right to 
control railroad companies in the exercise of their chartered powers, 
so far as these are public franchises. A railroad company, because 
it has a charter, is not for that reason freed from any obligation to 
the public which a private person would have who transported 
passengers and freight (as he might do with a hack and dray). All 
common carriers, that is, persons or companies who make a busi- 
ness of carrying passengers or freight, can be controlled in their 
charges and their methods of management, when it is for the public 
good, and railroad companies are not exempted from this State 
control because they have been chartered by the State. 



138 PROHIBITIONS ON THE STATES. [I: 10, 1. 

An additional reason exists in the case of railroads. The State 
exercise i for them the right of eminent domain, and allows the rail- 
road to take the land needed for its track and buildings with or 
without the consent of the owners of the land. As the State thus 
gives a railroad a public franchise for the public good, it is fair that 
the same law of the public good should be exercised to prevent ex- 
tortion or mismanagement of a railroad so as to injure the public. 

Nor could a State legislature, by a charter to a railroad company, 
give up its right to control the tariff and the management of the 
railroads. That is a right inherent in the people, which the legis- 
lature, as the representatives of the people, can exercise for them, 
but which they cannot sell or give away. 

This right of the State to control corporations does not extend 
further than to the good of the public in general. But as far as 
the action of a corporation affects only its own members, and does 
not conflict with existing State laws, or with public policj', the 
State will not interfere. For instance, within these limits a State 
cannot interfere with the internal government of a^hurch, or of a 
secret society, or of a literary association, or any other voluntary 
organization. It can protect them in their property, and prevent 
their meetings being disturbed, but will leave them to manage their 
internal affairs according to their own rules. 

IX. To grant titles of nobility. — The States as 
well as the United States are forbidden to grant any 
titles of nobility. If this is forbidden to the United 
States, it certainly ought to be forbidden to the States. 

As a historical fact, it may be interesting to know 
that no American titles of nobility have ever been 
granted, except in the famously foolish constitution 
drawn up for Carolina by the philosopher John Locke. 
These titles soon died out, and no others have ever been 
created. Persons have come to this country who held 
titles in foreign lands, and have even acquired citizen- 
ship here; and American citizens have been honored 
with titles abroad. But since our independence, no title 
of nobility has ever been made or recognized by our 
laws. Those who are nobles in foreign lands, here are 
simple citizens. 



I: 10, 2.] CONDITIONAL P30HIBITI0NS. 139 

CLAUSE 2. 
CONDITIONAL PROHIBITIONS. 

No State .shall, without tlic consent of the CaagregS, lay . r du- 

ties on imports or exports, except what may be &DS >lu1 ilj 
executing its Inspection laws ; and the net produce of all dnti 
Imposts, laid by any State on imports or exports, shall be for lb 
the treasury of the Unit and all such laws f 

the revision and control of the Cottj 

No State shall, without the consent of Congress, lay any duty of ton 
keep troops or ships of war in time of peace, enter Into Bl . 
or compact with another State, or with a foreign ]>■■■ 
war, unless actually invaded, or in such imminent 
admit of delay. 

I. To LAY DUTIES OX IMPORTS AND EXPORTS.— 

Compare this with Section 8, Clause 1. If -States could 
lay taxes as they pleased on imports and exports, it 
would lead to much injustice of one State toward the 
commerce of another, and much jealousy and rivalry 
between States. 

The Constitution intends to give the Uj 
the complete control over foreign commerce and com- 
merce between the States. It would have been simpler 
to have forbidden the States absolutely from laying du- 
ties on exports or imports. But the convention meant 
to leave it open to Congress if they chose to let the 
States appoint revenue officers and collect duties under 
United States laws. * The States had been collecting 
duties for themselves. And it might be convenient for 
a time to still leave it to the States, only making the 
duties uniform and paying the net revenue from duties 
into the United States treasury. 

But Congress at once assumed the power of laying 
duties, and has never consented since to give up aii3* 
part of that power to the States. The States have 
never collected duties under this clause, and probably 
never will. 



140 PROHIBITIONS ON THE STATES. [I: 10, 2. 

But the States may pass inspection laws to secure 
good measure in goods offered for sale, or to prevent 
goods dangerous to health being sold. And they may 
charge fees for the inspection ; enough to pay the ex- 
penses of the inspector, and no more. 

II. To impose tonnage duties. — Duties of ton- 
nage are duties on ships according to the amount of 
freight they can carry. The tonnage is the amount of 
freight they can carry; thus a ship of a hundred tons 
burden is one that can carry a hundred tons of freight. 
A tonnage duty is a duty on commerce, and it is put 
under the control of Congress like all that relates to 
commerce. The consent of Congress is necessary before 
a State can lay a tonnage. 

III. TO KEEP A STANDING ARMY OR NAYY. — No 

State can keep an army or navy in time of peace, with- 
out the consent of Congress. The national govern- 
ment^dsually will reserve that right to itself. But 
should an extraordinary occasion arise, Congress has 
the power to authorize a State or States to keep troops 
or ships of war in time of peace. In time of war, it 
may be very necessary for a State to raise an army or 
a navy for its own defense and that of other States. 
In that case the consent of Congress need not be asked 
for. 

It is not intended by the words " keep troops " to 
prevent States organizing and arming their militia in 
time of peace, as well as war. 1 It is a standing army 
that is forbidden. 

IV. To MAKE AGREEMENTS AND COMPACTS. — How do 

the agreements and compacts named here differ from 
the treaties, alliances and confederations named in the 

i Compare Section 8, Clause 16, of this Article, and Amendment II. 



I: 10, 2.] CONDITIONAL PROHIBITIONS. Ul 

first clause of this section? In the one case, a State is 
prohibited absolutely from making them; in the other 
case, it is only required to gain the consent of ( 

The natural interpretation is, that these compacts and 
agreements refer only to such business transactioi 
States sometimes must have, as well as private individ- 
uals; while treaties, alliances and confederations refer 
to political agreements. The latter are absolutely for- 
bidden to the States. 

No State can hold any political relations whatever, 
except as a member of the Union. It cannot have any 
political relations with other States or with fori 
nations. That is all reserved for the United States. But 
a State may have business relations with other States. 
or with foreign powers. But as these could easily pass 
into political relations, the power is reserved to the 
United States to control these business relation-. Ex- 
amples of business relations between the States are, 
" questions of boundary, interests in land situated in 
the territory of each other, and other internal regula- 
tions for the mutual comfort and convenience of States 
bordering on each other. Such compacts have I 
made since the adoption of the Constitution." (Story.) 

The consent of Congress to such compacts need not 
be expressed. It may be inferred from the legislation 
of Congress on the subject. 1 

V. To engage in war. — A State may engage in 
war, if actually invaded or threatened with invasion: 
and as the necessity would be pressing, it would not be 
needful to wait for the United States authorities; but 
the State could defend itself at once with all the force 
at its command. But unless in self-defense, a State can- 
not make war, but must wait the decision of the United 

1 Virginia vs. West Virginia, 11 Wall. S9. 



U2 PROHIBITIONS ON THE STATES. [I: 10, 2. 

States government. If Congress should ever authorize 
one or more States to engage in war, it would not be a 
State war, but a United States war. There is no way in 
which some of the States can get into a war, defensive 
or offensive, without involving the rest in it too. If a 
State is invaded, it is also the United States which is 
invaded, and not only the State but the United States 
which will resent the invasion. If a State goes to war, 
the United States is responsible for it, and must either 
uphold it, or put a stop to the war at once. The Con- 
stitution thus gives each State the right of self-defense, 
but reserves all other powers of war to the United 
States. 

VI. Other prohibitions on the states. — In 
other parts of the Constitution, the States are prohib- 
ited from the following things: 

1. To deny the citizens of another State the privileges of a citi- 
zen. This is implied in Art. IV, Sec. 2, Clause 1. 

2. To refuse to give up persons charged with crime in other States. 
This is implied in Art. IV, Sec. 2, Clause 1. 

3. To refuse to give up a person held to service in another State. 
This is implied in Art. IV, Sec. 2, Clause 2. As slavery is now 
abolished, this provision is now practically obsolete. 

4. To re-establish slavery. (Amendment XIII.) 

5. To abridge the privileges or immunities of citizens of the 
United States. (Amendment XIV, Clause 1.) 

G. To deprive any person of life, liberty or property without due 
process of law. (Amendment XIV, Clause 1.) 

7. To deny any person within its jurisdiction the equal protection 
of the laws. (Amendment XIV, Clause 1.) 

8. To fill offices with unpardoned rebels. (Amendment XIV, 
ClauseS.) 

9. To assume the rebel debt or claims for the loss of slaves. 
(Amendment XIV, Clause 4.) 

10. To deny the right of citizens of the United States to vote on 
account of race, color or previous condition of servitude. (Amend- 
ment XV.) 



1:10, 2.] CONDITIONAL PROHIBITIONS. U% 

■ The Supreme Court has also decided that the following- powers 
are denied to the States, by implication: 

1. To interfere with the exercise of any authority belonging- to 
the United States. 

2. To interfere with the property of the United States by taxation 
or otherwise. 

3. To lower the value of United States bonds or paper money by 
taxation. 



144: THE EXECUTIVE DEPARTMENT. [II. 



ARTICLE II. 



THE EXECUTIVE DEPARTMENT. 

"As for an absolute monarchy, as it is called (that is to say, when the whole 
state is wholly subject to the will of one person, namely, the king), it seems 
to many to he unnatural that one man should have the entire rule over his 
fellow citizens, when the state consists of equals. * * * And for this 
reason it is as much a man's duty to submit to command, as to assume it, 
and this also by rotation; for this is law, for order is law; and it is more 
propter that the law should govern than any one of the citizens. Upon 
the same principle, if it is advantageous to place the supreme power in 
some particular persons, they should be appointed to be only guardians 
and servants of the laws."— Aristotle, Politics, Book III, ch. 16. 

I. The executive department carries out the 
laws. — As tlie legislative department of the govern- 
ment is to make the laws, so the executive department 
of the government is to carry out and enforce the laws. 
In making laws we need deliberation, and the combined 
wisdom of many. In executing the laws we need the 
decision and force which a single will can give. There- 
fore, as the legislative power is vested in a Congress of 
two houses, each composed of many persons, represent- 
ing all parts of the country and all interests, so the 
executive power is vested in one person, assisted by 
many others under his direction. 

The chief executive of this county is not called king 
or emperor, because that would imply that he inherited 
his place as of right. He is called simply President. 

II. The executive power is made distinct prom 
and independent of the legislative. — Under the 
Confederation, Congress when in session was the execu- 



II.] THE EXECUTIVE DEPARTMENT. 145 

tire as well as the legislative department of the gov- 
ernment, and when Congress was not in session, a 
committee of Congress was the executive. It was found 
by experience that the legislative and executive po\ 
could not he combined profitably. Besides the general 
weakness of the government under the Confederation, 
there w r as a special weakness of action. Congress could 
pass laws and resolutions, but it could not put them 
into effect. So keenly was this felt, that no opposition 
was made in the Constitutional Convention to an execu- 
tive distinct from and independent of Congress. We 
thus returned to the usual form of representative gov- 
ernments, a government in which the power that makes 
the laws and the power that executes them are kept 
distinct from and independent of each other. This was 
the form of the English government, and of the colonial 
governments. 

In the case of those States which during and after 
the Revolution made their executives dependent on their 
legislatures, experience had shown the same defect as 
in the Confederation. And these States also soon 
returned to the typical form of representative govern- 
ment — a government consisting of three distinct parts, 
legislative, executive and judicial, each independent of 
the other. 

IV. The executive power is vested m oxe max. — 
The essential thing in a good executive is energy of 
action. This can only be secured by putting power and 
responsibility in the hands of one man. No council or 
committee will act with such decision, steadfastness, 
secrecy, activity and dispatch as one competent man 
will do. 

Where several persons are associated together in any 
governing body, there are sure to be differences of opin- 

K 



146 THE EXECUTIVE DEPARTMENT. [II. 

ions and party spirit, and there are apt to be personal 
jealousies and secret intrigues. These are fatal to any 
prompt or decisive action, which is the very thing needed 
in an executive. The experience of the Confederation 
taught the framers of the Constitution that it is safer 
to put the executive power in the hands of one man 
than to vest it in a council. The experience of all civil- 
ized governments confirms this. 

V. The executive is made kespo^sible to the 
people. — An irresponsible, unlimited executive is a 
despotism. The executive ought to have power, but 
not irresponsible or unlimited power. If the President 
could not be called to account for his actions, he would 
be able to do what he pleased, and usurp power in one 
way or another, until he became Monarch of a kingdom 
instead of President of a republic. 

The President is limited in his powers by this Consti- 
tution, which defines his duties. Should he overstep 
that limit, or otherwise grossly betray the trust confided 
in him by the people, he could be impeached and re- 
moved from office. . 

But he is held responsible to the people in a far more 
effectual way by being elected for a limited term. The 
fact of election gives the people an opportunity to have 
such a President as the majority of them wish. - Even 
if they should be deceived in their choice, or if the Pres- 
ident, after his election, should be led astray by some 
foolish policy, or some ambitious design, he cannot do 
much mischief, or get many persons to help him in any 
very foolish or dangerous designs in the short time he 
has to rule. 

On the other hand, the hope of re-election will lead a 
President to perform the duties of his office, and to 
carry out the wishes of the people as faithfully as he 



II.] THE EXECUTIVE DEPARTMENT. U7 

can. Thus the executive is limited and made respon- 
sible : 

1. By the fear of impeachment. 

2. By being the choice of the nation. 

3. By his term of office being short. 

4. By his hope of re-election. 

VI. All executive officers are agents of the 

PRESIDENT. 

The executive power is vested in the President. But of com 
is impossible for him to do everything himself. Nearly all the work 
of the executive department is done by officers of various kinds. As 
these officers are appointed by the President, or by other officers 
whom he appoints, and as they may be removed at pleasure, 1 they 
are for all practical purposes his agents or clerks, and what they do 
he may be said to do. For instance, the act of collecting the cus- 
tom duties is an executive act. The President, however, cannot 
collect those duties himself in all the ports of the United S;, 
But he appoints the Collector of Customs and his chief assistant in 
each port, who, with the assistance of clerks working under their 
direction, collect the customs. But as these officers are responsible 
to the President for the faithful performance of their duties, and 
can be removed by him, it is really the President who collects the 
customs. If there is corruption and mismanagement in the New 
York Custom House, for instance, it is the President's duty to see 
that it is stopped, by removing the guilty officers; and if he does 
not do so, he makes himself responsible for the corruption. So also 
with every branch of the service. The executive power is vested in 
the President, but that power is carried into effect by the various 
executive officers. 

But these officers are not merely agents of the President; they are 
agents of the people. The executive power is entrusted to the Presi- 
dent to be used for the public good, and according to law. These 
officers are not merely subject to the President; they are also sub- 
ject to the law; and therefore, in some degree, to the law-making 
body. Congress controls the subordinate executive officers in the 
following ways: 

1. Congress creates by law the offices which they fill. 

i For the limitations on the President's power of appointment and removal, 
sec pages 185-190. 



148 THE EXECUTIVE DEPARTMENT. [II. 

2. Congress can abolish any of these offices by law, and thus in- 
directly remove an officer. 

3. These officers are paid by appropriations made by act of Con- 
gress, which may be withheld, and the officers thus be compelled to 
resign, for lack of pay. 

4. Congress, or either House, can appoint an investigating com- 
mittee, who will examine into the conduct of any officers of the gov- 
ernment, and publish the results to the people; thus if reform is 
needed, rousing public sentiment to demand a reform. 

5. Congress, or either House, can pass a resolution requesting 
the President to remove certain officers. 

6. In cases of flagrant misconduct, if the President should refuse 
to remove the guilty official, the House of Representatives can im- 
peach him; and, if found guilty by the Senate, he will be removed 
from office. 

In one or more of these ways, Congress can, to a large extent, pre- 
vent or punish corruption or treason in office. If the President 
should undertake to carry out some foolish or ambitious project, he 
would need the assistance of many officials to do it. But Congress 
can always interfere with any such designs, by some of the methods 
named above. In addition to this, the Senate has also a share in the 
President's appointments, as we shall see. 



II: 1.] 



ORGANIZATION. 



149 



SECTION 1. 



ORGANIZATION. 



ANALYSIS OF THIS SECTION. 



r I. Term of Off 
II. Qualifica- 


ice — four years 


II. 1. l 


r (a.) Age — 33 years 


,. n, 1,8 




tions.... " 


(b.) Citizenship — natural born citizen. 11. 1,3 




[ (c) Residence— 14 yeitn in the U.S... 11. '.5 




*■ 


\ (a ) Number equal 
to the Sena- 
tors and Rep- 
resentatl v es 
of each Stale. II, 1,8 




1. P r c s id cnlial 


(b.) Chosen as 1 




electors .... 


Isl ature of 
each State di- 
rects II, 1. i 

(c.) Con grcssmen 
and U. S. ofli- 
cers disquali- 
fied 11,1,2 

' (a.) Fixed by Con- 




2. Time of choos- 


gress II, 1. 4 




ing electors. 


(b.) Uniform 
through the 
U. S II, 1,4 


III. Election.. ■* 




(a.) Fixed by Con- 




3. Time of their 
meeting — 


gress II, 1, 4 

(b.) Uniform 
through the 

U. S 11,1,4 

' (a.) Meet in respec- 
tive States... Am. XII 

(b.) Vote by ballot Am. XII 

(c.) Separately for 
President 
and Vice 




4. Election of 
electors 


President... Am. XII 

(d.) Both cannot be 
of the same 
State as them- 
selves Am. XII 

(e.) A majority 

elects Am. XII 

(f.) They vote but 


» 




. once Am. XII 



150 



HE EXECUT.VE DEPARTMENT. 



[II: 1. 



III. Election.. < 



5. Canvassing the 
returns .... 



6. Election by 
House of 
Representa- 
tives 



(a.) Returns sent 
to President 
of Senate.... Am. XII 

(b.) Opened in pres- 
ence of Con- 
gress Am. XII 

(c.) And counted.. Am. XII 

' (a.) Only in case no 

person has a 

m a j o rity of 

the electoral 

votes 

(b.) Must choose 

among the 

three highest 

(c.) By ballot 

(d.) Each State has 

one vote 

(e.) Quorum— two- 
thirds of the 

States 
(f.) Majority of all 

the States 

necessary to 

a choice Am. XII 



Am. XII 



Am. XII 
Am. XII 



Am. XII 



.. Am. XII 



IV. Salary... 



(a.) Fixed by law II, 1,7 

(b.) Not increased or diminished during 

his term of office II, 1, 7 

(c ) No oilier emolument II, 1,7 



V. Oath of Office. 



r (a.) For high crimes and misdemeanors 

, TT „ ! (b.) On impeachment by House of Rep- 

VI. Removable < 

resentatives 

L (c.) And conviction by the Senate 



II, 1, 8 
II, 4 



I, 2,5 
I, 3,7 



VII. Duties. (See Sections^ and 3.) 

r (a.) Filled by Vice President, if there be 



VIII. Vacancies 



(b.) Or by such officer as Congress has 
by law appointed 



II, 1, 6 
II, 1, 6 



II: 1.] 



ORGANIZATION. 



151 



I. Term op Office 
II. Qualifications - 



same as President n, 1,1 

?ame as President Am. XII 







' 1. Same as Preside 

EXCEPT 


nt Am \ T I 












(a.) Only in case no 








person has a 








majority of 








the electoral 








votes Am. XII 








(b.) Must choose 


III 


Election.. ,, 


•2. Election by 
Si.nafe 


between the 

two highest.. Am. XII 

(c) Quorum— two- 
t birds of 
whole num- 
ber of Sena- 
tors Am. XII 

(d.) Majority of all 
the Senators 
needed to 








elect Am. XII 


TV. 


Oath of Off 
Removable — 


ce yi 3 


V. 


same as President II, 1 



I 1. As President of the Senate with cast- 

VI. Duties .... ■{ ing vote 1,3,4 

^ 2. Become President in case of vacancy. II, 1, 6 

VII. Vacancies — not filled II, 1,6 



CLAUSE 1. 



EST WHOM VESTED. 

The executive power shall be vested in a President of the United States of 
America. He shall hold his office during the term of four years, and 
together with the Vice President, chosen for the same term, be elected 
as follows. 

I. Term of office. — The President's term of office 
is four j'ears. This is twice as long as that of a Repre- 
sentative, and two-thirds as long as that of a Senator. 
The term of office of President, Vice President, Repre- 
sentatives and Senators begins and ends on the fourth 
of March in- the odd years (except when a vacancy is 



152 THE PRESIDENT. [II: 1. 

filled). On the fourth of March, at noon, in every odd 
year, the terms of office of all Representatives and of 
one-third of the Senators come to an end, and the terms 
of office of their successors begin. Every other odd 
year, on the fourth of March, at noon, the terms of 
office of the President and Vice President also come to 
an end, and the terms of office of their successors begin. 
As the election for President and Vice President takes 
place every leap year, this term of office begins on the 
fourth of March in the year next following each leap 
year. With this clue, the student can easily remember 
the years of each Presidential term, except where cut 
short by death. 

II. Re-election of the president. — The letter of 
the Constitution does not forbid the re-election of a Pres- 
ident any number of times. But it has become a well 
understood custom, though never formally enacted, that 
the President may be re-elected once, but no more. 
This custom was begun by Washington when he de- 
clined a third term, on the ground that two terms are 
enough for a President. It was confirmed by the action 
of Jefferson in also declining a third term, and by the 
constant practice of the country since then. Some 
Presidents have wished a third term, but the people have 
refused to grant it. It may now be considered a settled 
part of the unwritten Constitution, that a President may 
be elected twice, but no more. 

III. The vice president. — The Vice President is 
elected for two purposes: 

1. To fill the place of President, when there is a va- 
cancy in that office. 

2. To preside over the Senate meanwhile. When the 
Vice President becomes President, he does not preside 
over the Senate. 



II: 1, 2.J PRESIDENTIAL ELECTORS. 153 

Three eases have occurred in which the Vice Presi- 
dent has become President. At the deatli of President 
Harrison, Vice President Tyler became President; at 
the death of President Taylor, Vice President Fillm 
became President; at the death of President Lincoln, 
Vice President Johnson became President. Xo case 
has occurred in which the Vice President has become 
President for jmy other reason than the death of the 
President. 

CLAUSE 2. 

PRESIDENTIAL ELECTORS. 

Each State shall appoint, in such manner as the legislature thereof may di- 
rect, a number of electors, equal to the whole number of Senator* and 
Representatives to which the State may be entitled In the Congr. 
no Senator or Representative, or person holding an office of tnut or 
profit under the United States, shall be appointed an elector. 

I. The president elected indirectly. — In the 
Constitutional Convention, it was first voted that the 
President should be elected by Congress. But on fur- 
ther consideration, the plan was adopted of electing 
him by presidential electors. The Convention did not 
intend that the President should be elected by the 
people. They thought that the chief of the nation 
ought not to be elected by the passions and prejudices 
that often control a popular election; but by the calm 
judgment of a few of the best men of each State. 

The idea was a fine one in theory; but in practice it 
did not work as its authors expected it would. In 
actual practice the President is elected by the people 
indirectly. The electors are always pledged beforehand 
to vote for certain persons for President and Vice Pres- 
ident; and they are only so chosen because they are so 



151 THE PRESIDENT. [II: 1, 2. 

pledged. The presidential electors have never failed to 
vote for the candidate of their party. 1 

II. Appointment of presidential electors. — The 
manner of choosing presidential electors is left to the 
several States. The following different methods have 
been followed in some or all of the States: 

1. They have been chosen by the State legislature. 
This was the usual method at first. 

2. They have been chosen in several States by the 
people voting by districts. This is the fairest method, 
and represents the will of the people most accurately. 
Under this plan, a State will generally choose some of 
its electors from one party and some from the other, 
while under either of the other plans, the party which 
has a majority, however small, in the State, will carry 
all the electoral votes of the State. 

3. They are now chosen in all the States by vote of 
the people on a general ticket. Whichever party car- 
ries the State, has all the electoral votes of the State. 3 

III. Qualifications of presidential electors. — 
Only one qualification is prescribed. No Senator or 
Representative, or any United States officer, can be a 
presidential elector. This was intended to keep the 
electors as free as possible from personal interests in the 
result of the election. But as electors now are only 
machines to cast certain votes, this provision is of no 
practical importance. It has been evaded in various 
ways. 

1 Except in the case of the death of Horace Greeley, who died after the 
electors wsrc appointed, and hefore they met. In that case the Democratic 
electors voted for several different persons, according to their own individual 
preferences. 

2 The ca*c has happened, where there were three or more parties, that two 
have combined in a State against a third on an electoral ticket divided be- 
tween the two parties. That is the only way in which the vote of a State 
ha* boen divided under the present practice. 



11:1,3.] ELECTION. 155 

IV. Number of presidential electors. — This is 
the same as the number of Senators and Representative 
to which the State is entitled in Congress. The small 
States thus have a greater voice in the election 
President than their population would entitle them to. 

CLAUSE 3. 

ELECTION" OF PRESIDENT AND VICE PRESIDENT. 

TWELFTH AMENDMENT. 

The electors shall meet in their respective Slates and vote by ballot for I 

dent and Vice President, one of whom, at least, shall not bean inhabitant 
of the same State with themselves; they shall name in their ballots the 
person voted for as President, and in distinct ballots the person vote 1 
for as Vice President, and they shall make distinct lists of all -. 
voted for as President, and of all persons voted for as Vice President, ai.d 
of the number of votes for each; which lists they shall Bign and certify, 
and transmit sealed to the seat of government of the United States, di- 
rected to the President of the Senate. The President of the S< nate shall, 
in the presence of the Senate and House of Representatives, open all the 
ccrtiiicates, and the votes shall then be counted; the person haying the 
greatest number of votes for President shall be the President, if such 
number be a majority of the whole number of electors appointed: and if 
no person have such majority, then from the persons having the highest 
numbers not exceeding three on the list of those voted for as President, 
the Douse of Representatives shall choose immediately, by ballot, the 
President. But in choosing the President, the votes shall be taken by 
States, the representation from each State having one vote; a quorum 
for this purpose shall consist of a member or members from two-thirds 
of the States, and a majority of all the States shall be necessary to a 
choice. And if the House of Representatives shall not choose a Presi- 
dent whenever the right of choice shall devolve upon them, before the 
fourth day of March, next following, then the Vice President shall act as 
President, as in the case of the death or other constitutional disability of 
the President." 

The person having the greatest number of votes as Vice President, shall 1 o 
the Vice President, if such number be a majority of the whole number of 
electors appointed, and if no person have a majority, then from the 
two highest numbers on the list, the Senate shall choose the Vice Presi- 
dent; a quorum for the purpose shall consist of two-thirds of the whole 
number of Senators, and a majority of the whole number shall be neces- 
sary to a choice. But no person constitutionally ineligible to the office 
of President shall be eligible to that of Vice President of the United 
States. 



156 THE PRESIDENT. [II: 1, 3. 

A. The First Process. 

I. Election by the electoks. — The presidential 
electors thus chosen, elect a President and Vice Presi- 
dent, if they can, under the following restrictions: 

1. They meet in their respective States. They do not 
all meet in one place. They meet in their own States, 
and usually at the State capitals. The object of this is to 
prevent bargaining for votes, which would be easy if 
they all met in the same place. Vacancies in the Col- 
lege of Electors in any State are filled in such way as 
that State has prescribed by law. This is done in many 
States by the electors themselves. If a vacancy exists 
by reason of death, absence, or ineligibility of an elector, 
the College of Electors select some one to fill the 
vacancy, and then proceed to vote for President and 
Vice President.. 

2. They vote by ballot. The vote by ballot is fre- 
quently used in elections in the United States, for the 
purpose of allowing the voter to conceal his vote, and 
thus to be more independent. It is used for that pur- 
pose here. But as the presidential electors have ceased 
to be independent voters, and as every one knows how 
they will vote, long before they meet, this provision is 
practically useless. 

3. They ballot for President and Vice President sep- 
arately. This prevents any mistakes or confusion in 
voting. 

4. Only one of these can live in the same State with 
themselves. This is to prevent both President and Vice 
President being from the same State. They have usu- 
ally been not only from different States, but from dif- 
ferent sections of the country. 

5. A majority of the electors is required to elect. A 
majority is more than half of the whole number of 



11:1,3.] ELECTION. 157 

votes. A candidate may have the largest number of 
votes and not have a majority, and thus fail to be elected 
by the electors. 

6. The electors vote but once. This follows from 
their meeting in different places. Before the invention 
of the telegraph, it would have been -impossible to hare 
even got the news of the result in time to vote a second 
time, if there was no election the first time. And even 
now, it would be quite inconvenient for thirty-eight 
sets of men, meeting in thirty-eight different places, to 
keep on voting and announcing the results <>f the ballot. 
The electors must therefore elect a President or Vice 
President on the first ballot, or not at all. 

II. Counting the totes. — The votes thus cast are 
counted as follows: 

1. The electors in each State make a list of all p - 
sons voted for by them for President and a list of all 
persons voted for by them for Vice President. They 
sign these lists and certify that they are genuine. All 
the electors in each State sign and certify these lists. 

2. Three sets of these lists exactly alike are made out. 
of which one is sent to the President of the Senate by 
mail, another by special messenger, and the third is de- 
livered to the judge of the United States district court 
for the district in which the electors meet. If the Pres- 
ident of the Senate fails to receive the certificates of 
election from any State by the first Wednesday in Jan- 
uary, he is authorized to send a special messenger for 
the certificate in the hands of the District Judge. 

3. The President of the Senate, who may or may not 
be the Vice President (I, 3; 4 and 5), presides over a 
joint convention of the Senate and House of Repre- 
sentatives. In their presence he opens the certificates. 
which are read by clerks, and the votes for each candi- 



158 THE PRESIDENT. [II: 1, 3. 

date are added up and announced by tellers appointed 
from each House. No provision is made for the case of 
a disputed election of presidential electors in any State. 
This fact led to the contested presidential election of 
1S76. 

4. If any candidate for President is found to have a 
majority of all the electoral votes cast for President, he 
is thereupon declared elected. And if any candidate 
for Yice President is found to have a majority of all the 
electoral votes cast for Vice President, he is declared 
elected Vice President. If in either case no one has a 
majority, there is no election by the electors. 

B. Second Process. 

III. Election of president by the house of 
representatives. — When the presidential electors fail 
to elect a President, the right of election goes to the 
House of Representatives under the following condi- 
tions : 

1. No candidate can be voted for except the three who 
received the highest number of votes for President. 

2. The vote is by ballot. 

3. The vote is by States, each State having one vote. 
The vote of each State is given as the majority of the 
members from that State who are present may direct. 
If the vote of a State is equally divided, that fact is re- 
ported, and the vote of that State is not given to any 
candidate. 

4. A quorum for the purpose of voting for a Presi- 
dent must consist of a member or members from two- 
thirds of the States. A quorum for ordinary purposes 
consists of a majority of the members elected. 

5. A majority of all the States is necessary to a choice. 
If a State is divided, its vote helps to prevent an election. 
Thus in 1801, when the election was thrown into the 



II: 1, 3.] ELECTION, 159 

House of Representatives, there were sixteen States; of 
these, eight voted for Jefferson, six for Burr, and two 
were divided. There was therefore no election. Thirty- 
five times the House voted with the same result. On 
the thirty-sixth ballot, some members from the two 
divided States who had voted for Burr, purposely left 
the room. The members from those States who re- 
mained could then give a majority in each for Jefferson, 
so that he had ten States and Burr six, and Jefferson 
was elected. 

6. The House must proceed at once to elect a Presi- 
dent. If they Ml to elect before the fourth of March, 
then the Vice President just elected becomes President. 
The reasons for this are, that the President's term of 
office must begin on the fourth of March, and that the 
House of Representatives ceases to exist on the same 
day, and the new House comes into power. 

IV. Election of vice president by the senate. — 
When the presidential electors fail to elect a Vice 
President, the choice devolves upon the Senate, under 
the following conditions: 

1. No candidate can be voted for except the two who 
received the highest number of votes for Vice President. 
This ensures a speedy election. 

2. A quorum to elect a Vice President is two-thirds 
of the whole number of Senators. 

3. A majority of all the Senators is necessaiy to a 
choice. It is not merely a majority of all present, but 
a majority of all. 

V. The old method of electing president and 
vice president. 

When the Constitution was first adopted, it prescribed a method 
of electing President and Vice President, somewhat different from 
the one now in use. The new method was adopted by an amend- 



160 THE PRESIDENT. [II: 1, 3. 

meiit to the Constitution in 1804, in consequence of the danger to 
the country shown in the disputed election of 1801. The Constitu- 
tion originally read as follows : 

The electors shall meet in their respective States, and vote by ballet for 
two persons, of whom one at least shall not be an inhabitant of the same 
State with themselves. And they shall make a list of all the persons voted 
for, and of the number of votes for each; which list they shall sign and cer- 
tify, and transmit, sealed, to the seat of the government of the United States, 
directed to the President of the Senate. The President of the Senate shall, 
in the presence of the Senate and House of Eepresentatives, open all the 
certificates, and the votes shall then be counted. The person having the 
greatest number of votes shall be the President, if such number be a ma- 
jority of the whole number of electors appointed; and if there be more than 
one who have such a majority, and have an equal number of votes, then the 
House of Eepresentatives shall immediately choose by ballot one of them 
President, and if no person have a majority, then from the five highest on the 
list the said House shall in like manner choose the President. But in choos- 
ing the President, the votes shall be taken by States, the representation 
from each State having one vote; a quorum for this purpose shall consist of 
a member or members from two-thirds of the States, and a majority of all 
the States shall be necessary to a choice. In every case, after the choice of 
the President, the person having the greatest number of votes of the elect- 
ors, shall be the Vice President. But if there should remain two or more 
who have equal votes, the Senate shall choose from them by ballot the Vice 
President. 

The following is an analysis of this method of election, with a 
comparison with the method now in use: 

A. First Process. 

Election by the electors. — The electors having been chosen 
in such way as the several States have prescribed, proceed to elect 
a President and Vice President, if they can. under the following 
conditions: 

1. They meet in then - respective States. This provision is still 
retained. 

2. They vote by ballot. This provision is still retained. 

3. They vote for two persons. They did not designate which of 
the two they wished to be President and which Vice President. 
This was a fatal defect, as the election of 1801 showed. The ma- 
jority of the electors wished Jefferson to be President and Burr 
Vice President, but both received the same number of votes, and 
Burr came near being elected President by the House of Represent- 



II: 1, 3.] ELECTION. 161 

ativcs. This defect is remedied in the amended mode of electing 
President and Vice President. 

4. A majority was required, then as now, to elect a President. 
But as each elector had two votes, the majority required was not a 
majority of all the votes, but a majority of all the electors. Put a 
majority was not required to elect a Vice President. /The person 
having the second highest number of votes was in any case to be 
Vice President. 

Counting tiik votes. — No change has been made in this. 

B. Second Process. 

Election of president. — If no person had a majority of all 
the electoral votes, or if two had a majority and both had the 
number, then the House of Representatives proceeded to 
President under the following conditions: 

1. If two candidates each were voted for by a majority of all the 
electors, and had the same number of votes, then the House - 
choose between these two. This was the case in the celeb, 
election of 1801. This case would be impossible institution 
now stands, and therefore is not provided for. 

2. If no candidate was voted for by a majority of the elec I 
then the House must choose from the five highest on the list This 
is now changed to the three highest. 

3. The vote was by ballot, then as now. 

4. The vote was by States, then as now. 

5. The quorum remains the same. 

6. A majority of all the States was necessary to a choice, then 
as now. 

7. The House was required to proceed to an election immedi- 
ately. This has not been changed. 

8. No provision was made for the case of the House of Repre- 
sentatives failing to elect before the fourth of March. The election 
of 1801 showed this to be necessary. It is now provided for. 

Election of vice president. — Under the old plan, it would 
be unlikely that the Senate would ever be called on to elect a Vice 
President. After the President was elected, either by the electors 
or by the House of Representatives, the candidate who stood equal 
or next highest on the list became Vice President, whether he had 
a majority of electoral votes or not. The only case in which the 
Senate would be called on to select a Vice President, would have 
K 



162' THE PRESIDENT. [II: 1, 3. 

been when two stood next on the list to the President-elect, and 
both had the same number of electoral votes. In that case the 
Senate was to choose between these two by ballot. 

As the Vice President is now voted for separately from the Presi- 
dent, it is provided that a majority of electoral votes is necessary to 
elect a Vice President ; that if no person has a majority, the Senate 
elect by ballot from the two highest; that a quorum shall consist 
of two-thirds of the Senators, and a majority of all the Senators 
shall be necessary to a choice. 

The essential difference between the old plan and the new is, that 
under the old plan each elector voted for two persons, without say- 
ing which one he wished for President or Vice President, while 
under the present plan each elector votes for two persons, distinctly 
naming one for President and the other for Vice President. All the 
other changes are such as are made necessary to carry out this 
change. 

Under the old plan, the President was several times of one polit- 
ical party, and the Vice President of the other party. But under 
the present plan, that could only occur in case the presidential 
electors failed to elect, and the Senate and House of Representatives 
were controlled by opposite parties. 

VI. The disputed election of 1876. 

Just as the disputed election in 1801 called the attention of the 
country to one defect in the Constitutional provision for the election 
of President and Vice President and led to the twelfth amendment, 
so another disputed election called the attention of the country to 
another defect, and will probably lead to another amendment of the 
Constitution. 

No provision is made in the Constitution for the case of a dis- 
puted election in a State. It was intended that the certificate of 
the proper officer in each State should attest the election of the 
electors, and that their certificate should attest their own vote. An 
extraordinary case arose in 1877, when Hayes and Tilden, the rival 
candidates, each had a certificate of election from a set of electors 
in several States. As the Senate and House were controlled by op- 
posite parties, neither would yield. Just before the time for count- 
ing the votes, an extraordinary tribunal was created, consisting of 
five Senators, five Representatives, and five Judges of the Supreme 
Court, to whose decision these contested cases were referred. All of 
them were decided in favor of Hayes, and he was declared elected 
President by one majority. 



11:1,3.] 



ELECTION. 



163 



It was claimed by one side that the Constitution gave the Presi- 
dent of the Senate the right to decide which were the legal elect; 
oral votes. And it was claimed by the other side that Congress or 
either House could refuse to receive the vote of any State, where 
there was a dispute in regard to it. Both these claims were pre- 
posterous. The fact is r the Constitution is defective at this point, in 
not providing for the contingency, and it should be amended. 

VII. List of the presidents: 



Inaug- 
urated. 



1789 
1793 
1797 
1801 
1806 
1909 
1818 
1817 
1821 
1825 
1829 
1833 
1837 
1841 j 

1815 

1849 ( 

1850] 

1S5:J 

1857 

1861 

1865 -j 

1860 
1ST.} 
1877 



Name. 



George Washington 

George Washington 

John Adams 

Thomas Jefferson 

Thomas Jefferson 

James Madison 

James Madison 

James Monroe 

James Monroe 

John Qjiincy Adams.... 

Andrew Jacks on 

Andrew Jackson 

Martin Van Bnren 

William Henry Harrison 

John Tyler 

James K. Polk 

Zaohary Taylor 

Millard Fillmore 

Franklin Pierce 

James Buchanan 

Abraham Lincoln 

Abraham Lincoln 

Andrew Johnson 

Ulysses S. Grant. 

Ulysses S. Grant 

Rutherford 13. Hayes — 



State. 



Virginia 

i 

Massachusetts . 
Virginia. . ... . 

Virginia 

Virginia 

Virginia 

Virginia 

Virginia 

Massachusetts . . 

Tennessee 

Tennessee 

New York 

Ohio 

Virginia 

Tennessee 

Louisiana 

New York 

Now Hampshire 
Pennsylvania . .. 

Illinois 

Illinois 

Tennessee 

Illinois 

Illinois 

Ohio 



liij wit at party 



All parties. 

All parties. 

Federalist. 

Republican. 

Republican. 

Republican. 

Republican. 

Republican. 

Republican. 

Republican. 

Democrat. 

Dcmoc 

Democrat. 

Whig. 

Whig. 

Democrat. 

Whig. 

Whig. 

Democrat. 

Democrat. 

Republican. 

Republican. 

Republican. 

Republican. 

Republican, 

Republican. 



It will be ieen from the above that Virginia has furnished five 
Presidents (one of whom, however, was elected Vice President), 
Tennessee three (one elected as Vice President), Massachusetts two, 
Illinois two, Ohio two, New York two (one elected as Vice Presi- 
dent), Louisiana one, New Hampshire one and Pennsylvania one. 

The Presidents from Virginia have served eight terras and a 
fractional term, those from Illinois three terms and a fractional 
term, those from Tennessee three terms and a fractional term, 
those from Massachusetts two terms (father and son), and the rest 
a less time. 

After Washington's two administrations, which were not partisan, 
though Washington himself was a Federalist, the Federalists car- 



1G4 THE PRESIDENT. [II: 1, 3. 

riod one presidential election, the old Republicans seven, the Demo- 
crats six, the Whigs two, and the present Republican party five. 

Note.— History of the presidential elections.— The following is a 
brief history of the presidential elections: 

1. At the first Presidential election, George Washington was elected Presi- 
dent unanimously. John Adams had the next highest number of electoral 
votes and was elected Vce President. The other votes were scattered. Par- 
ties were not j r et fully defined. Both Washington and Adams were Feder- 
alists, that is, in favor of giving more power to the Federal government than 
the Republicans, afterwards called Democrats, wished to give. But Wash- 
ington governed in an unpartisan way, choosing his cabinet from both 
parties. 

2. Washington was elected unanimously. Adams was elected Vice Presi- 
dent, as a Federalist candidate. 

3. Adams was elected President, and Jefferson Vice President. This 
election had the peculiar feature of electing the chief of the opposing parties 
one to each of the two highest offices. This was possible under the old 
method of electing the President, but would not be possible now. 

4. To prevent such a result again, the electors of each party concentrated 
their votes on two candidates. The result was that Jefferson and Burr, the 
Republican (or Democratic) candidate, each received 73 votes, which was a 
majority of all the electors. It was well known that the Republican electors 
wished Jefferson as President. The election went to the House^ of Repre- 
sentatives, who were obliged to choose between these two. The Republicans 
in the House voted for Jefferson, and the Federalists for Burr, in order to 
embarrass and divide the Republicans. For thirty-five successive ballots, 
eight States voted for Jefferson, six for Burr, and two were divided. Jeffer- 
son was finally elected President, and Burr Vice President. This election 
showed a great defect in the Constitution, which was remedied by the 
Twelfth Amendment. 

5. Jefferson was re-elected President, and George Clinton Vice President, 
by the Republicans (or Democrats) under the new method. 

6. Madison was elected President, and George Clinton was re-elected Vice 
President, by the Republicans (or Democrats). 

7. Madison was re-elected President, and Elbridge Gerry was elected Vice 
President, by the Republicans (or Democrats). 

8. The successful termination of the war with England, in spite of the 
opposition of the Federalists, completely destroyed them as a party, and 
James Monroe was elected President, and Daniel Tompkins Vice President, 
by the Republicans (or Democrats), by a large majority. 

9. They were re-elected almost unanimously. This was called "the era of 
good feeding," when the old party issues had passed away and new issues 
had not yet come up. 

10. There were four tickets in the field. Calhoun was elected Vice Presi- 
dent by the electors. No one was elected President by the electors, but 
Jackson bad the largest popular vote. The House of Representatives elected 
J. Q. Adams Picsident, on the first ballot. He was the last President elected 
by the old Republican party. 



11:1,3.] ELECTION. 165 

11. Jackson was elected Presid.-nt, and Calhoun Vice President, by the 
Democatic party. 

12. Jacks hi was re elected President, with Van Burcn as Vice President. 

13. Van Buren was elected President by the Democrats, and K. If. John- 
son Vice President, the election g .ung to the Senate. 

14. Harrison and Tyler were elected by the Whig party. But Hairison 
died just one month after he was inaugurated, and Tylc-, who became the 
President, soon left the Whig party for the Democratic. 

15. Polk and Dallas were elected by the Democrats. 

1G. Taylor and Fillmore were elected by the Whigs. President Taylor died 
after serving one year and four months, and Fillmore became President 

17. Pierce and King were elcc'.ed by the Democrats. Bat King d ed before 
being sworn in as Vice President. 

18. Buchanan and Breckenridge were elected by the Democrats. 

10. Lincoln and Hamlin were elected by the Republican party mot to be 
confused with the old Republican party, who were the predecessor! of the 
Democrats), and the Southern States seceded in consequence. 

21. Lincoln was re-elected, with Andrew Johnson as Vice President The 
States engaged in secession did not vote. But Lincoln was assassinated one 
month and ten days after his second inauguration, and Andrew Johnson 
then hecame President, and like Tyler went over to the Democratic party. 

21. Grant and Colfax were elected by the Republican party. Virginia, 
Mississippi and Texas did not vote. 

22. Grant was re-elected with Wilson, by the Republican party. Arkansas, 
Georgia and Louisiana were excluded from the count for irregularities in 
the election. 

93. This Presidential election was the most exciting on record. The votes 
of South Carolina, Florida, Louisiana and Oregon were in dispute. If any 
one of them were counted for the Democratic candidates, they would be 
elected. As the Senate was Republican and the House Democratic, they 
could not agree in regard to which 6et of certificates from either of these 
States should be counted. A compromise was at last effected by creating 
an extraordinary commission, to consist of five Senators (three Republicans 
and two Democrats), five Representatives (three Democrats and two Repub- 
licans), and five Judges of the Supreme Court (two Republicans and two 
Democrats, and the fifth to be chosen by the other four). The decisions cf 
this commission were to be binding unless reversed by a vote of both 
Houses. This electoral commission, by a vote of eight to seven, admitted 
the certificates from the Republican elector's of all the States in dispute, and 
thus gave the election to Hayes and Wheeler by one electoral vote. The 
count was not completed by Congress until March 3. This disputed election 
showed the need of a change in the manner of electing the President, or at 
least In the manner of counting the vote. 



166 THE PRESIDENT. [II: 1, 5. 

CLAUSE 4. 

TIME OF THESE ELECTION'S. 

The Congress may determine the time of choosing the electors, and the 
day on which they shall give their votes; which day shall he the same 
throughout the United States. 

Time of presidential elections. — Congress lias 
determined the time of these elections by law. The 
following table will aid the memory : 

1. Election of Electors, the Tuesday after the first 
Monday of November (in each leap year), the day on 
which Representatives are also chosen. 

2. Electors vote for President and Vice President, the 
first Wednesday in December. 

3. The President of the Senate sends for missing 
returns the first Wednesday in January. 

4. The votes are counted the first Wednesday in 
February, and thereafter till a President is elected, but 
not longer than till the fourth of March. The same 
dates hold for the Senate in electing a Vice President. 

6. The President is inaugurated the fourth of March. 
If that falls on Sunday, he is inaugurated on the fifth. 

CLAUSE 5. 
qualifications of president and vice president. 

No person except a natural-born citizen, or a citizen of the United States, 
at the time of the adoption of this Constitution, shall he eligible to the 
office of President; neither shall any person be eligible to that office, 
who shall not have attained to the age of thirty-five years, and been 
fourteen years a resident within the United States. 

I. Citizenship. — The President must be a natural- 
born citizen of the United States. The President must 
be a citizen by inheritance, not by adoption. He^annot 
be a naturalized citizen; but it is possible that a person 



II : 1 , 5.] QUALIFICATIONS. 167 

born out of the United States might be President. The 
child of American parents born in foreign lands, would 
be a natural-born American citizen, but not a native- 
born citizen (see page 87). 

Naturalized citizens, who were citizens at the time 
the Constitution was adopted, were made eligible to the 
office of President. But none of that class are now 
alive, and none have ever been elected President. This 
provision is therefore now practically obsolete. 

II. Age and residence. — The President must be 
at least thirty-five }*ears old. 

He must have resided within the Unit 
least fourteen years. This residence need not 1. 
been immediately before his election, but may have been 
at any time previously. Persons have been eh 
President soon after a return from an embassy to some 
other country. The object of this provision was to 
prevent any person who had recently been naturalized 
from being elected President, soon after the Constitu- 
tion was adopted. This would also cover the case ot 
natural-born citizens who had spent nearly all their 
lives abroad. A sufficient residence is required to make 
the candidate for the presidency familiar with the insti- 
tutions of the country he aspires to govern. 

III. Qualifications of vice president. — The 
Vice President must have the same qualifications as the 
President, because he may become President. 



16S 



THE PRESIDENT. 



[11:1,6. 



IV. A TABLE OF QUALIFICATIONS— The following 

table will aid the student's memory: 





Age. 


Citizenship. 


Residence. 


President. . . 


35 


Natural-born citizen. 


Fourteen years in the 
United States. 


Vice President 


35 


Natural-born citizen. 


Fourteen years in the 
U..ited States. 


Soiator 


80 


Nine years a c tizen. 


In the State from 
which chosen, 




Representative 


25 


Seven years a citizen. 


In the State from 
which chosen. 



The following is a table of additional particulars: 



President 

Vice President 

Senator 



Representative 



Term of 
Office. 



4 years. . . 
4 years . . . 
6 years . . . 

2 years . . . 



How Elected. 



By electors , 

By electors 

By State Legisla 
tures 

By the people ... 



Vacancies, 
How Filled. 



By Vice President. 

Not Filled. 

By Governor or State 
Legislature. 

By the people of the 
District. 



CLAUSE 6. 



VACANCIES. 

In case of the removal of the P.esidcnt from office, or o" his death, resigna- 
tion, or inability to discharge the powers and duties of the said office, 
the same shall devolve on the Vice President, and the Congress may by 
law provide for the case of removal, death, resignation or inability, both 
of the President and Vice President, declaring whit officer sliall then act 
as President, and such officer shall act accordingly, until the disability 
be removed, or a President shall be elected. 

I. Vacancies in the presidency, how made. — The 
office of President may become vacant by death, by his 
removal on impeachment, by his resignation, or by such 
disability as insanity, or extreme and long continued 



II: 1, 6.] VACANCIES. 169 

sickness. It may also be vacant in case of the failure 
of both the presidential electors and of the House of 
Representatives to elect a President before the fourth of 
March. (Clause 3.) 

The absence of the President from Washington does 
not create a vacancy. Presidents have performed many 
official duties at a distance from the capital. 

When the President is impeached, there is no vacancy. 
When Andrew Johnson was impeached, he held his 
office, and as the Senate acquitted him, no vacancy 
occurred. 

II. Vacancies in the presidency, how tilled. — 
When a vacancy exists, and there is a Vice President, 
he fills that vacancy, unless he also is incapacitated in 
some way. If the President should be only disabled 
from performing the duties of his office by insanity or 
sickness, the Vice President would act as President for 
the time being, until the disability cease. But when 
the vacancy is a permanent one, the Vice President be- 
comes President. Only three vacancies in the office of 
President have occurred, in each case by the death of 
the President, and in each case the Vice President has 
succeeded to the office of President. 

III. Vacancies in the vice presidency. — The 
office of Vice President may become vacant by his death 
or resignation, by his removal on impeachment, or by 
his promotion to the office of President. When a 
vacancy occurs it is not filled. But the duties of the 
Vice President as President of the Senate are performed 
by the President pro tempore of the Senate. 

IV. Vacancies in both presidency and vice 
presidency. — The Constitution leaves it to Congress 
to provide for the case of a vacancy in the office of 



170 THE PRESIDENT. [II: 1, 7. 

both President and Vice President. Congress has pro- 
vided that in case of such double vacancy, the President 
of the Senate, and if there be no President of the 
Senate, then the Speaker of the House of Representa- 
tives, shall act as President, until the disability be re- 
moved or a new President be elected. In that case a 
special election must be held the next fall, and a Presi- 
dent must be elected to fill the unexpired term, unless 
it is the last year of the term. This case has never 
arisen. 

When the Vice President becomes President on the 
death, removal or resignation of the President, he holds 
the office for the whole of the unexpired term. But if 
the President of the Senate or the Speaker of the 
House of Representatives fill a vacancy, he would be 
only Acting President, and he would only hold the 
office of President until a special election could be held. 
But if the vacancy occur in the last year of the Presi- 
dent's term, the Acting President holds the office for 
the remainder of the term. 

V. Disputed question. 

Would the absence of the President from the United States create 
a vacancy ? The case has never occurred, and therefore no positive 
answer can be given. But most of the States have provided that 
the absence of the Governor from the State creates a vacancy in 
the office during his absence, and that the Lieutenant-Governor 
shall act as Governor during his absence from the State; and this 
would lead us to suppose that if the case should ever arise, it would 
be decided that the absence of the President from the United States 
creates a temporary vacancy. 

CLAUSE 7. 
SALARY. 

The President shall, at stated times, receive for his services a compensa- 
tion which shall he neither increased nor diminished during the period 
for which he shall have been elected, and he shall not receive within 
that period any other emolument from the Unite! States, or any of them. 



II: 1, 8. J OATH OF OFFICE. 171 

The salary of the president. — The salary of the 
President was twenty-five thousand dollars until 1 V T'.. 
when it was raised to fifty thousand dollars. Besides 
this, the United States has built a house called the 
White House, and keeps it furnished for the President's 
use. He also has special appropriations for any special 
expenses. He is expected to spend full as much as he 
receives. No executive of any country as large as this 
receives so small a salary. 

The salary of the Vice President was first five thou- 
sand, then eight thousand, then ten thousand, and is 
now eight thousand a year. 

The reason for neither increasing nor diminishing the 
salary of the President during his term is to make him 
more independent of Congress. This was evaded when 
President Grant's salary was raised for his second term, 
before his first term had ended, but after he had been 
elected for a second term. 

CLAUSE 8. 

OATH OF OFFICE. 

Before he enter on the execution of his office, he shall tike the following 
oath or affirmation: l, I do solemnly swear (or affirm) that I will faith- 
fully execute the office of President of the United States, and will, to 
the best of my ability, preserve, protect and defend the Constitution of 
the United States. ,, 

I. The oath of office. — The oath of office may 
be administered to the President by any Judge; but the 
practice is to have the Chief Justice of the Supreme 
Court perform this duty. The Chief Justice of the 
Supreme Court is the highest officer who can admiuister 
an oath, and ranks next to the President. 

The President's oath of office contains two pledges: 
1. To faithfully perforin the office of President of 
the United States. 



172 THE PRESIDENT. [II: 1, 8. 

2. To the best of his ability to preserve, protect and 
defend the Constitution of the United States. 

The oath is a very simple oath as compared with 
many oaths of office. It embraces only the two most 
essential points. If the President has conscientious 
scruples against taking an oath, he can affirm instead 
of swearing. 

II. Inauguration of the president. — The Pres- 
ident is inaugurated on the fourth of March, at noon. 
Besides other ceremonies, the oath of office is admin- 
istered, and the President delivers an inaugural address. 
The fourth of March, 1877, came on Sunday. It was a 
legal question whether the President's term in that case 
ended on the fourth or fifth of March. The difficulty 
was avoided by President Hayes taking the oath of 
office in private on the fourth, and again in connection 
with the inaugural ceremonies on the fifth, and by 
President Grant doing no official acts after noon of the 
fourth of March. 

In the three cases when the Yice President became 
President, he took the oath of office, but there were no 
public inaugural ceremonies. 



II: 2.] POWERS AND DUTIES OF PRESIDENT. 173 



SECTION 2. 



POWERS AND DUTIES OF THE PRESIDENT. 



ANALYSIS OF THIS SECTION. 
(And of other executive powers in the Constitution ) 



I. Powers iiki.d 

JOINTLY WITH 

tue Senate. 



II. Powers held 
jointly with 
CONORBdi ... 



III. Sole Powers •< 



IV. Prohibitions 
on all Exec- 
utive Offi- s 
CER8.. 



!. To make treaties II, 3, 3 

2. To appoint aud remove officers.. II, 2, 2 

( (a.) By the veto I, 7, 2, 3 

1. Over legislation', (b.)Hy hi- mes- 

( sages II, 3 

2. Protection of States 11,4 

3. To decide between rival State 

governments IV, 4 

4. To protect the Union against re- 

bellion or invasion (Implied).. 

1. Commander-in-Chief II. 2, 1 

2. Cabinet II. 2. 1 

3. Pardon and reprieves II, 2, 1 

4. Temporary appointments II. 3, 8 

5. Appointment of inferior officers, II, 2. 2 

6. Messages to Congress II. 3 

7. Convening and adjourning Con- 

gress II, 3 

8. Receiving Embassadors 11,3 

9. Executing the laws II. 3 

10. Commissioning officers 11,3 

1. Cannot suspend the writ of 

habeas corpus except in war 

time I, 9,2 

2. Cannot draw money from the 

Treasury except as appropri- 
ated by law I, 9,6 

3. Cannot receive offices or pres- 

ents from foreign powers with- 
out the consent of Congress.. I, 9, 7 

4. Bound by oath to support the 

Constitution and fulfill duties 

of office VI, 3 

5. Cannot infringe rights guaran- 

teed in Amendments I-X 



174 THE PRESIDENT. [II: 2, 1. 

CLAUSE 1. 

SOME SOLE POWERS OE THE PRESIDENT. 

The President shall be commander-in-chief of the army and navy of the 
United States, and of the militia of the several States, when called into 
the actual service of the United States; he may require the opinion, in 
■writing, of the principal officer in each of the executive departments, upon 
any subject relating to the duties of their respective offices, and he shall 
have power to grant reprieves and pardons for offenses against the 
United States, except in cases of impeachment. 

A . Com man der- in-Ch ief. 

I. The reason for this power. — In order to exe- 
cute the laws of the United States, and to protect the 
nation from invasion or insurrection, it is necessary that 
the President should have charge of a military force. 
In almost all governments the chief executive officer is 
commander-in-chief, and in creating a chief executive 
for the United States, it was natural and necessary that 
he should have command of the army and navy. These 
forces are subject to the general rules made by act of 
Congress (I, 8, 14), are supported by appropriations 
made by Congress (I, 8, 12), and can be reduced in num- 
ber, reorganized, or abolished altogether by Congress 
(I, 8, 12). So that the President cannot well use these 
forces for very harmful purposes. 

II. What military forces are under his com- 
mand. — The military forces under his command are the 
regular army, the regular navy, a volunteer army and 
navy, whenever these are authorized by Congress, and 
the militia of the several States when called into the 
United States service. All these forces are under the 
command of the President, subject to the powers of Con- 
gress named above. But the militia of any State are 
under the command of the President only when actually 



II: 2, 1.] THE CABINET. 175 

in the service of the United States. Otherwise they are 
under the command of the governors of their respective 
States. 

III. The president need not command in 
person. — The President may command the army in 
person, or he may put one or more military officers 
in command to carry on military operations under his 
general directions. The latter has always been the c 
The President has never actually taken the field in 
person; but he has appointed officers to command, with 
certain general instructions, which they were to carry 
out as best they could with the means at their command. 

The President has the right to make additional rules 
for the army and navy, so far as they do not conflict 
with those established by law. 

B. The Cabinet. 

I. Executive departments. — This clause by im- 
plication provides for executive departments. These 
have been established by law, and increased in number 
from time to time. The head of each department is 
called a secretary. These departments again are divided 
into bureaus, each with its officers and employes. 

The numbers, titles, and compensation of these offi- 
cers are fixed by law. The principal officers are 
appointed by the President, with the advice and con- 
sent of the Senate, and can be removed at pleasure. 
The clerks and employes in each department are ap- 
pointed by the chief of that department, and can be 
removed at pleasure. 

These departments are all subject to the President, 
and must carry out his orders. The executive power is 
vested in the President, and he is responsible for its 
exercise. 



176 THE PRESIDENT. [II: 2, 1. 

The names of these executive departments, and the 
titles of the head of each, are given in the following 
table: 1 

DEPARTMENTS. SECRETARIES. 

Department of State Secretary of State. 

Treasury Department Secretary of the Treasury. 

War Department Secretary of War. 

Department of the Navy Secretary of the Navy. 

Department of the Interior Secretary of the Interior. 

Post Office Department Post Master General. 

Department of Justice Attorney General. 

II. The cabinet. — President Washington began 
the practice of consulting the heads of departments sep- 
arately or together, orally or in writing, about all 
important matters, thus making an informal Cabinet. 
President Jefferson began the practice of holding regu- 
lar Cabinet meetings, a practice which has been kept up 
by all Presidents since. President Hayes added the 
Vice President to the Cabinet. This practice of holding 
Cabinet meetings, and of consulting with them on all 
important matters, is not binding on the President. He 
can do it or not, as he chooses. But it is so great a 
help to him in the management of his office, that it is 
not likely that any President will ever dispense with it. 

A Cabinet meeting is not so much in the nature of a 
legislature as of a council of war. The President takes 
the opinions of his Cabinet, but he is not bound by 
them. Still, as they are his political friends, and gen- 
erally his personal friends, a wise President is usually 
guided by them to a great extent. 

The Cabinet meetings are usually secret. The con- 
sultations are not published. They are therefore much 
freer than they could be if they were public or were to 

1 There is a so-called Department of Agriculture, but as the chief is called a 
commissioner, and does not belong to the Cabinet, it is not given in the list 
above. It is properly a bureau instead of a department. 



11:2,1,] TUP] CABINET. 177 

be published. The things which the Cabinet advise the 
President to do, are of course known when he does 
them, and often are told to the public before they are 
put in action, though sometimes they are kept secret 
for a time. 

III. Reports of heads of departments. — It 
has become the custom for the heads of departments 
and for the heads of important bureaus to prepare full 
reports to the President, which he transmits to Con- 
gress with his annual message. Most Americana 
must have seen these reports, for they are printed every 
year by thousands and scattered over the country. 

The President sometimes calls for written reports or 
opinions at other times. The Attorney-General, as the 
law officer of the Government, is frequently called upon 
for an opinion in writing as to the lawfulness of certain 
courses of action. The reports or opinions in writing 
which the President can require, must be upon a sub- 
ject relating to the duties of the Secretary's office. 
Thus the President would call on the Secretary of 
State for an opinion upon our relations with an}' foreign 
power, or upon the Secretary of the Treasuiy for an 
opinion on a financial question, and so on. 

IV. Organization of the departments. — The 
executive departments are each divided into bureaus, 
with their chiefs and a force of clerks, copyists and 
messengers, etc. 

THE DEPARTMENT OF STATE. 

The chief of this department is called the Secretary of State. 
His duties are: 

1. Domestic. — He keeps the originals of the Constitution and of 

all laws and public documents. He keeps the great seal of the 

United States, and seals all commissions to office, all proclamations 

of the President, and all copies of papers and records in his office. 

L 



178 THE PRESIDENT. [II: 2, 1. 

2. Foreign. — He keeps the originals of all treaties, and all cor- 
respondence with foreign powers, conducts all such correspondence, 
issues warrants for the extradition of criminals to foreign powers, 
and issues passports to citizens of the United States who wish to 
travel abroad. 

In this department there is an Assistant Secretary of State, ap- 
pointed by the President with the consent of the Senate, and many 
clerks. There are three bureaus in this department, each with a 
chief and a force of clerks. They are: 

1. The Diplomatic Bureau. 

2. The Consular Bureau. 

3. The Domestic Bureau. 

Connected with the Department of State are the Diplomatic Ser- 
vice and the Consular Service. 

THE DIPLOMATIC SERVICE. 

To every country with which we have diplomatic relations we 
send a foreign minister. Those sent to the most important coun- 
tries are called Ministers Plenipotentiary; those sent to less impor- 
tant countries are called Ministers Resident. The duties of both 
classes are the same. Most Ministers have Secretaries of Legation. 
In the absence of the Minister, the Secretary of Legation transacts 
all business for him. 

THE CONSULAR SERVICE. 

Consuls have charge of our commercial relations. They guard 
the interests of our commerce, and the rights of seamen. In all 
countries not Christian, consuls have a great increase of power and 
duties. An American citizen in England is subject to English law; 
but an American citizen in Turkey or China is subject to American 
law, not Turkish or Chinese law. To administer American law in 
non-Christian lands, consuls have some judicial powers given them. 

THE TREASURY DEPARTMENT. 

The chief of this department is called the Secretary of the Treas- 
ury. He has charge of everything that relates to the revenues and 
expenditures of the United States. 

This department has more work, and employs more clerks than 
any other. There are two Assistant Secretaries of the Treasury, 
and the following bureaus, each with a force of clerks: 



11:2, l.J THE CABINET. 17g 

BUREAUS. CHIEFS. 

Office of First Comptroller First Comptroller. 

Office of Second Comptroller Second Comptroller. 

Office of First Auditor First Auditor. 

Office of Second Auditor Second Auditor. 

Office of Third Auditor Third Auditor. 

Office of Fourth Auditor Fourth Auditor. 

Office of Fifth Auditor Fifth Auditor. 

Office of Sixth Auditor Sixth Auditor. 

Office of Treasurer Treasurer of the United States. 

Office of Commissioner of Customs, Commissioner of Customs. 

Bureau of Internal Revenue Commissioner of Internal Rev- 
enue. 

Bureau of Statistics Director of the Bureau of Sta- 
tistics. 

The Mint Director of the Mint. 

The Coast Survey Superintendent of the Coast 

Survey. 

Office of the Supervising Architect, Supervising Architect. 

Light House Board Secretary of the Treasury (ex 

officio). 

THE WAR DEPARTMENT. 

This department has charge of all that relates to the Army. The 
officers in charge of Bureaus are army officers. The Secretary some- 
times has been an army officer. The divisions of the department 
are as follows : 

BUREAUS. CHIEFS. 

Office of Adjutant General Adjutant General. 

Office of Quartermaster General Quartermaster General. 

Office of Commissary General Commissary General. 

Office of Paymaster General Paymaster General. 

Office of Surgeon General Surgeon General. 

Office of Chief of Engineers Chief of Engineers. 

The Ordnance Office Chief Ordnance Officer. 

The Signal Office Chief Signal Officer. 

The Bureau of Military Justice Judge Advocate General. 

The Military Academy at West Point, N. Y., trains officers for 
the army, and is in charge of the War Department. One cadet is 



180 THE PRESIDENT. [II: 2, 1. 

sent from each Congressional district, nominated by the Representa- 
tive from that district, one from each Territory, nominated by the 
Delegate, and ten at large, appointed by the President. Each 
cadet pledges himself to serve at least five years in the army after 
he graduates. 

DEPARTMENT OF THE NAVY. 

This department has charge of all that relates to the Navy. The 
chief officers in this department are navy officers, detailed for that 
purpose. The Secretary of the Navy has sometimes been a navy 
officer. The work is divided thus: 

BUREAUS. 

The Bureau of Yards and Docks. 

of Equipment and Recruiting. 

of Navigation. 

of Ordnance. 

of Medicine and Surgery. 

of Provisions and Clothing. 

of Steam Engineering. 

of Construction and Repairs. 

The Naval Academy at Annapolis, Md., trains officers for the 
Navy. The cadets are appointed in the same way as for West 
Point, 

DEPARTMENT OF THE INTERIOR. 

This is the most miscellaneous department. Its duties can be 
best learned from the names of the bureaus into which it is divided. 
They are as follows : 

BUREAUS. CHIEFS. 

The Patent Office Commissioner of Patents . 

The Pension Office. . . . Commissioner of Pensions. 

The Land Office Commissioner of the General Land Office. 

The Indian Bureau. . . Commissioner of Indian Affairs. 
The Census Bureau . . . Superintendent of the Census. 
The Bureau of Education. Commissioner of Education. 

The Department of Agriculture (so called), whose chief is styled 
Commissioner of Agriculture, is nominally independent. Properly, 
it is a bureau in the Department of the Interior. 



II: 2, 1.] THE PARDONING POWER. 181 

POST OFFICE DEPARTMENT. 

This department has charge of all that relates to the post offices. 
It is divided as follows : 

BUREAUS. CHIEFS. 

Appointment Office. First Assistant Postmaster General. 

Contract Office Second Assistant Postmaster General. 

Finance Office Third Assistant Postmaster General. 

Money Order Office. Superintendent of the Money Ord i 

Foreign Mail Offic3. Superintendent of the Foreign Mails. 

DEPARTMENT OF JUSTICE. 

This department has charge of the prosecution ami defense of 
suits for or against the United States. All the District Atto 
and Marshals of the United States Courts act under the orders of 
this department. The department has several chief officers who 
correspond nearly to the assi.-tant secretaries and chief of bun 
in the other departments. They are as follows: 

Solicitor General. 

Assistant Attorney General. 

Assistant Attorney General at the Court of Claims. 

Assistant Attorney General in the Department of the Interior. 

Assistant Attorney General in the Post Office Department. 

Solicitor of Internal Revenue. 

Naval Solicitor. 

Examiner of Claims. 

Solicitor of the Treasury. 

Assistant Solicitor of the Treasury. 

C. The Pardoning Power. 

I. Reasons for this power. — The experience of 
the world lias shown that in administering justice, mis- 
takes are sometimes made. Innocent persons are some- 
times convicted of crimes by mistake, or by false 
witnesses, and guilty persons are sometimes sentenced 
to a punishment more severe than they deserve. Some- 
times, also, a crime cannot be proved against a number 



182 THE PRESIDENT. [II: 2, 1. 

of guilty persons, except by the testimony of one of 
their number, which testimony will not be given unless 
the witness is assured that he will not be punished for 
his share in the crime. For these reasons, all govern-- 
nients have allowed a pardoning power, and have almost 
always placed this power in the hands of the execu- 
tive. 

The pardoning power is liable to great abuses. The 
executive may refuse to pardon those who deserve to be 
pardoned, and may encourage crime by pardoning great 
criminals. Our Presidents have been inclined to be too 
easy, rather than too severe, in the exercise of this power. 
It has sometimes been proposed to give this power to 
the courts; but no serious attempt has yet been made 
in that direction. 

II. Extent of the pakdoiti^g power. — 1. The 
President may pardon before trial and conviction as 
well as after. 

2. He may grant a conditional pardon. 

3. He may commute a sentence to one less severe. 

4. He may remit fines, penalties and forfeitures im- 
posed under the revenue laws. 

5. He may stop a criminal proceeding carried on in 
the name of the United States, at any stage of the pro- 
cess, and order the Attorney General or District Attor- 
ney to enter a nolle prosequi} 

6. He can reprieve a condemned person; that is, sus- 
pend his punishment for a time. This power is rarely 
used except where a person is condemned to death. 

7. He can issue a pardon to take effect at some future 
time. 

1 Nolle prosequi is a Latin phrase, meaning not to wish to prosecute. The 
effect ol entering a nolle prosequi is to stop the case and release the accused. 
But the accused may be prosecuted again for the same offenee at some future 
time, which would not be the case if he had been acquiited by ihe verdict of 

a jur ■•. 



II: 2, 2.] THE TREATY-MAKING POWER. 183 

8. His power extends to military as well as civil 
offenses. 

III. Limitations on the pardoning power. — 1. 
A pardon, reprieve or commutation must be accepted 
by the criminal, or it is void. 

2. In cases of impeachment, the President has no 
official power. An impeachment is a political, and not 
a criminal, trial, and is directed against an executive or 
judicial officer for malfeasance in office. Besides, if the 
President were impeached, it would be obviously unfair 
to allow him to pardon himself. 1 Or if an officer ap- 
pointed by the President was impeached for carrying 
out some ambitious design of the President, the Pi 
dent would be tempted to pardon him. 

The President's power to pardon only extends to 
offenses against the United States. When offenses have 
been committed against a State, he has no power to 
pardon. 

' CLAUSE 2. 
POWERS HELD JOINTLY WITH THE SENATE. 

lie shall have power, hy and with the advice and consent of the Senate, to 
make treaties, provided two-thirds of the Senators present concur: raid 
he shall nominate, and hy and with the advice and consent of the Senate, 
shall appoint Ambassadors, other public Ministers and Consuls, Judges 
of the Supreme Court, and all other officers of the United States, whose 
appointments are not herein otherwise provided for, and which Ehall be 
established by law; but the Congress may by law vest the appointment 
for such inferior officers as they may think proper, in the President 
alone, in the courts of law or in the heads of departments. 

A. The Treaty-making Power. 

I. Treaty making. — In monarchies the sovereign 
or his council have the sole power of making treaties 
and managing all the foreign relations of the govern- 

1 The case would be that supposed by the old negro in Washington, when 
President Johnson was impeached by the House of Representatives. The 
negro said, "No use to impeach de President. He'll veto it sure." 



18 ± THE PRESIDENT. [II: 2, 2. 

ment. It is necessary often to conduct negotiations 
with other governments with secrecy and despatch, 
which could not be expected if the national legislature 
was to make treaties and manage foreign relations. 
But as this is a republic, the representatives of the peo- 
ple ought to have some voice in matters so important 
to the national welfare. Both objects are gained in our 
plan of making treaties. The negotiations preliminary 
to a treaty are conducted by the executive, as well as 
the ordinary correspondence with other governments. 
But no treaty is valid until the Senate, by a two-thirds 
majority, has assented to it. The Senate has several 
times exercised its right of rejecting a treaty proposed 
by the President. 

II. A DISPUTED QUESTION. 

It is still an open question whether the President and Senate can 
make a treaty involving the payment of money without the consent 
of the House of Representatives. The President and Senate cannot 
compel the House to vote an appropriation with which to pay any 
sum promised in the treaty, but they can bind the honor of the 
nation to fulfill a contract lawfully made with a foreign power. In 
such cases the House has never refused to vote the appropriation, 
but has done it under protest. The House of Representatives 
claims that it ought not to be expected to vote money for an object 
about which it has not been consulted. The question is still unde- 
cided. 

III. Kinds of treaties. — Treaties are of four 
kinds: 

1. Treaties of peace, which close a war and formally declare its 
results. 

2. Treaties of alliance, in which two or more nations agree to 
help each other for some common object. A treaty of alliance may 
be merely defensive, in which each agrees to help the other when 
attacked; or it may be offensive and defensive, in which the allies 
agree to carry on war against a common enemy. 

3. Commercial treaties, in which two or more nations agree as to 
certain regulations of commerce between them. 



II: 2, 2.] THE APPOINTING POWER. 185 

4. Treaties to define and establish rules of international law. In- 
ternational law is to-day that body of customs and treaties which 
govern civilized nations in their relations with one another. These are 
constantly being changed and improved. On many disputed 
tions of international law, treaties have been mad'.* between a part 
of the civilized nations of the world, which are therefore law as 
between them, bat not for the other nations. 

B. The Appointing Power. 

I. Officers of the United States are appointed, 
not elected. — The rule in the United States serrie 
that officers shall be appointed, not electa d. Most State 
and county officers are now elected by the people. But 
at the time when the Constitution was adopted tl 
officers were generally appointed. That is still the i 

in England. This Constitution follows the practice 
then prevalent. It is not likely that it will ever be 
changed, so as to elect United States officers by the 
people. 

It should be remembered that Senators and Repre- 
sentatives are not officers of the United States, but 
representatives — the Senators of the States, and the Rep- 
resentatives of the people. The only United States 
officers who are elected are President and Vice President. 
All other officers of the United States are appointed in 
one way or another. 

II. Appointments in concurrence with the 
senate. — All the principal appointed officers of the 
United States are appointed by the President with the 
advice and consent of the Senate. For these officers 
the appointment of the President is either a mere nom- 
ination, or it is a temporary appointment. If the Senate 
is in session, an appointment by the President is only 
a nomination to the Senate. If the Senate refuses to 
confirm the nomination, the officer cannot be commis- 



186 THE PRESIDENT. [II: 2, 2. 

sioned, and the President must appoint or nominate 
some one else, until he selects some one whom the 
Senate is willing to confirm. But in the recess of the 
Senate, the President can make a temporary appoint- 
ment, which will hold good till the Senate meets (see 
next clause). 

III. The action of the senate. — These appoint- 
ments are considered by the Senate in secret session. 
They are usually referred to a committee, who inquire 
into them and report on some following day. Appoint- 
ments by the President are often rejected by the Senate. 
There are only two cases in which the Senate is in the 
habit of confirming appointments at once without re- 
ferring to a committee. 

1. The President's Cabinet are almost invariably con- 
firmed without hesitation, as a mark of courtesy to the 
President. The Cabinet are his advisers, and he ought 
not to be hampered in carrying out the duties of his 
office, by being deprived of the men he wishes to have 
for his advisers, or by having men he does not wish 
forced upon him. 

2. When a Senator, or a person who has been a Sen- 
ator, is named by the President for an office, the Senate 
is in the habit of confirming the nomination at once, 
as a mark of courtesy to a colleague. 

IV. Executive sessions of the senate. — When 
the Senate considers a treaty or an appointment, it 
goes into an "executive session." This is so called be- 
cause the business then transacted is not properly legis- 
lative business but executive business. These sessions 
are always secret. No one is allowed to be present but 
the members and officers of the Senate, and these are all 
pledged to secrecy in regard to the debates. The action 



II: 2, 2.] THE APPOINTING POWER. 1>7 

taken is of course necessarily made public at once, ex- 
cept sometimes in case of treaties. But the debates and 
votes are kept secret. This is to give greater freedom 
to Senators in speaking and voting than the}' would 
have if their action was made public. Appointments 
are confirmed by a simple majority, but treaties require 
a two-thirds majority. 

Y. Appointments without the concurrence of 
the senate. — The Constitution provides that Congress 
ma}- by law vest the appointment of inferior officers in 
the President alone, in the courts, or in the heads of 
departments. 

This only applies to those inferior officers whose ap- 
pointment is expressly given by law to one of those 
three powers. In all other cases, no matter how insig- 
nificant the office, the officer must be appointed by the 
President and Senate concurrently. By far the largest 
class of these officers are those postmasters whose sal- 
aries are less than one thousand dollars. These are 
over 50,000 in number, and are appointed by the Post- 
master General. 

YI. Removals. — The power to appoint, when un- 
limited, implies the power to remove. The question 
was settled in Washington's administration, that the 
President can remove all officers whom he can appoint, 
except judges, who hold for life. 

This power was limited in 1S66 and 1867 by two 
laws. The first provided that no officer in the military 
or naval service of the United States can be dismissed 
the service in time of peace, except on the sentence of a 
court martial. 

The other law is the tenure-of-office act. Originally, 
this act so limited the President's power of removal 



188 THE PRESIDENT. [II: 2, 2. 

that it was exactly equal to his power to appoint. That 
is, the President could not remove an officer except 
with the consent of the Senate; he could only suspend 
an officer until the Senate took action upon the case. 

But this has since been amended, so that the Presi- 
dent can now suspend an officer until the close of the 
next session of the Senate, and make a temporary ap- 
pointment in his place (clause 3). If the Senate before 
the close of its session does not confirm the person or 
persons whom the President nominates for the vacancy, 
the old officer comes back again. But it should be 
noted that the President, if he is obstinate, can suspend 
him again and make another temporary appointment, 
and so on, till the Senate yields (see page 190). 

VII. The appointment and eemoval oe inferior 
officers. — The Constitution allows Congress by law 
to vest the appointment of inferior officers in the Pres- 
ident alone, in the courts of law, or in the heads of 
departments. The object of this is to avoid taking up 
the time of the Senate or of the President with the 
appointment of a multitude of petty officers; and also 
to allow certain officers to be appointed by those most 
interested in them. " 

Congress has exercised this right. The chief classes 
of inferior officers who are appointed thus, are as 
follows : 

1. All postmasters whose salaries are less than a 
thousand dollars a year are appointed by the Postmaster 
General. 

2. Most of the clerks, messengers, etc., in the Depart- 
ments at Washington, are appointed by the Secretary 
in whose Department they are. The chiefs of the Bu- 
reaus and a few of the most important officers in each 



II: 2, 3.] POWER TO APPOINT TEMPORARILY. 189 

Department, are appointed by the President with the 
consent of the Senate. 

3. The clerks in the various Custom Houses are ap- 
pointed by the Chief Collector in each Custom House. 

4. The clerks of the United States Courts ;ire appointed 
by the Courts. In the cases of those inferior officers 
for whose appointment the concurrence of the Senate 
is not needed, it is also not needed for their removal. 
The same power which appoints can also remove. 

VIII. The tenure of office. — This is now in 
nearly all cases, except Judges and Clerks of Courts, 
for four years unless sooner removed. Officers are fre- 
quently removed for political reasons, us well as for 
unfitness. Officers are also frequently reappointed at 
the end of their first term. 

CLAUSE 3. 

THE POWER TO APPOINT TEMPORARILY. 

The President s-hall have power to fill up all vacancies that may happen 
during the rccc?s of the Senate, by granting commissions which shall 
expire at the end of their next session. 

I. Temporary appointments. — The Constitution 
provides that appointments to office (except some infe- 
rior ones) shall be by the joint action of the President 
and Senate. But the Senate is not always in session, 
and vacancies may occur when the Senate is not in 
session. The Constitution provides that in such cases 
the President alone may make an appointment to fill 
the vacancy. The officer so appointed holds only till 
the close of the next session of the Senate. 

When a vacancy occurs during the recess of the 
Senate, the President may (1) leave the office vacant till 
the Senate meets, or (2) make a temporary appointment. 



190 THE PRESIDENT. [II: 2, 3. 

In many cases he is obliged to do the latter, because 
the office must have some one in it, so that public busi- 
ness may go on. In other cases, it is better to wait till 
the Senate meets, and thus be sure that the President's 
choice meets with the approval of the Senate. This is 
the case with Judges of the Supreme Court, and with 
officers of the army and navy in time of peace. 

II. Vacancies, how caused. — Vacancies may be 
caused by death, by resignation, or by removal. The 
President can make a vacancy in an office b^ removing 
the officer holding it, and then fill the vacancy with 
some one he prefers. This, of course, can only be done 
in those offices over which he has the power of removal. 

III. Aisr evasion. — If a vacancy occurs or is made 
during the recess of the Senate, the President can ap- 
point some one to fill it, and if the Senate refuses to 
confirm him, wait till the Senate adjourns, and then 
reappoint him, and so on. He can do this because the 
term for which he commissions the officer lasts till the 
end of the next session of the Senate. When they ad- 
journ, that creates a vacancy in the office, which he has 
power to fill/ This appointment lasts till the close of 
the next session, and so on. Thus, if a President is 
disposed to be obstinate, he can in almost any case de- 
feat the will of the Senate. But as the President needs 
the co-operation of the Senate in many things, he will 
not usually try to provoke a contest over appointments. 

IV. Appointment to life offices. — If a vacancy 
occurs in a life office, such as a judge or officer of the 
arm}' or navy, any appointment made by the President 
in the recess of the Senate could only be till the close 
of the next session of the Senate, and not for life. To 
make it for life, the Senate must confirm the appoint- 
ment. 



II: 2, 3.] CIVIL SERVICE REFORM. 101 

V. Civil service reform. 

Originally the appointments to all the offices under the U\ 
States were expected to be for such a time as the officer was faith-, 
ful and efficient, and it was not supposed that officers would be 
removed except for unfaithfulness and inefficiency. An exec] 
was always made in the case of the Cabinet officers and 1 • 
Ministers. These officers were expected to cany out the President's 
political policy, and were therefore frequently changed. But all 
the inferior officers were expected to perform the duties of their 
office according to the orders given by their superior officers, without 
regard to their politics. During the first forty years of the republic, 
very few removals were made, and those only for good cai 

But President Jackson, in 1829, introduce 1 a new practice, which 
has ever since been followed. He and his Cabinet officers removed 
from office all government officers who had been active in opp 
his election, and filled their places with active partisans of his own. 
The practice has since been for each President and his Cabinet to 
make a large number of changes in the offices, and when a new 
party comes into power, to make pretty nearly a clean sweep. The 
new appointments are made as rewards of political services to the 
party in power. The case has never occurred that all the officers 
were removed who could be. In the various bureaus, some clerks 
have such knowledge of the methods of business that their services 
could not be spared. But the general fact is that a new President 
makes many changes, and a change of the party in power makes 
nearly a complete change of the civil service. 

The effect of these changes has not been so disastrous upon public 
business as it would seem to be. The new officers are usually se- 
lected not merely with reference to political services, but with refer- 
ence to special abilities for their work. And such is the general 
business adaptability of Americans that a politician appointed to a 
post office, or a revenue office, or an office in one of the depart- 
ments, learns its duties in a month or two, and performs them as 
well as if he had been doing them for years. Nor is there very 
much corruption in office, and probably no more than there would 
be under any system of appointing or electing government officers. 

The chief evil of our civil service is that it is a huge machine to 
control the politics of the country. While politics have not very 
largely corrupted the civil service, the civil service has greatly cor- 
rupted our politics. In order to purify our politics, it is necessary 
to take the civil service out of politics, just as the military and 
naval service is now out of politics. 



192 THE PRESIDENT. [II: 3. 



SECTION 3. 

OTHER SOLE POWERS OF THE PRESIDENT. 

lie shall from time to time give to the Congress information of the state of 
the Union, and recommend to their consideration such measures as he 
shall judge necessary and expedient; he may on extraordinary occasions, 
convene both Houses or either of them, and in case of disagreement be- 
tween them, with respect to the time of adjournment, he may adjourn 
them to such time as he shall think proper; he shall receive ambassa- 
dors and other public ministers; he shall take care that the laws be 
faithfully executed, and shall commission all of the officers of the United 
Slates. 

I. The president's message. — The President sends 
to Congress at the beginning of each regular session a 
message which contains: 

1. A general account of the doings of the executive 
during the year. 

2. A summary of the reports of departments, which 
reports are published separately. 

3. Suggestions and recommendations as to legislation 
needed. 

The President also sends special messages whenever 
there is occasion for them, to give information or to 
make recommendations. 

Washington and Adams followed the custom of the 
sovereigns of England, by going in person to deliver 
their messages, and by receiving a reply from each 
House. But Jefferson sent a written message, and did 
not expect a reply. This usage has been followed since. 

Congress does not always follow the recommenda- 
tions of the President. 

II. The power to convene congress. — Congress 
meets regularly on the first Wednesday in December, 
and remains in session in the odd years until the fourth 
of March, and generally much longer in the even years. 



11:3.] 



POWER TO CONVENE CONGRESS. 



193 



This is enough for all ordinary legislation. But occa- 
sionally there will come an extraordinary occasion when 
legislation is needed on some subject which cannot be 
put off till the regular session. Presidents have used 
their power to convene Congress in special session only 
eight times in all. 1 These occasions were all extra- 
ordinary. 

The President has frequently convened the Senate 
at the close of a regular session of Congress to consider 
appointments. 

The President can only convene Congress at the 
capitol, if the capitol can be used. If the capitol 
should be captured by foreign enemies, or by rebels, or 
a great pestilence or fire should make it uninhabitable, 
it would probably be in the power of the President to 
convene Congress at some other place, either at a regu- 
lar or special session. But the case has never arisen 
since the Constitution was adopted. 

When Congress is* convened in special session, it is 

1 The following table will show the special sessions of Congress, and the 
reasons for them: 



WUEN. 


Bv Whom. 


Why. 


May 15, 1797. 
Oct. 17, 1803. 






Jefferson 


Purchase of Louisiana. 


May 22, 1809. 
May 24, 1813. 
Sept. 4, 1837. 
May 31, 1841. 
Aug. 21, 1856. 








Difficulties with England. 
Financial distress of the country. 
Financial distress of the countrv. 


Van Duren 




Pierce 


Kansas troubles. 


July 4, 1861. 
pet. 15, 1877. 
Mar. 15, 1879 








No appropriations for the army. 
No appropriation bills passed. 









M 



194 THE PRESIDENT. [11:3. 

not confined to any special time. It can sit as long or 
as short a time as it pleases. Nor is it confined to any 
class of subjects. The President calls it together for 
special reasons, which he names in his proclamation or 
in his special message ; bat Congress is at liberty to 
consider any other subject, and generally takes that 
liberty. A special session only differs from a regular 
session in beginning at a different time. 

After a Congress has once met and organized, it can 
adjourn to any future time, and thus make special ses- 
sions, without any call of the President. But before a 
Congress has met, or if it has adjourned without deter- 
mining on a special session, it can only meet before the 
time of the next regular session by a call of the 
President. 

III. The power to adjourn congress. — When 
the Senate and House of Representatives cannot agree 
as to the time of adjournment, the President may 
adjourn them to such time as he thinks proper. This 
cannot be construed to mean that he can adjourn them 
any longer than till the time for the next regular ses- 
sion, as that is fixed by law. 

The case has never arisen in which both Houses have 
disagreed as to the time of adjournment, and the Presi- 
dent has never been called on to exercise this power. 
But the case might well arise when the value of this 
provision would be seen. 

In England the sovereign can prorogue, that is ad- 
journ, Parliament at any time, and can even dissolve 
Parliament and order a new election. A Parliament in 
England never adjourns itself, but is always prorogued 
by the sovereign when it has finished its work. And a 
Parliament rarely sits the full seven years for which it 
is elected without a dissolution. 



II: 3.] RECEPTION OF AMBASSADORS. 195 

IV. Reception of ambassadors. — To receive an 
ambassador or other public minister is to formally rec- 
ognize him as an ambassador. A foreign minister must 
present his credentials to the President at a formal 
audience, and be received, before he can perform any 
public act. The same thing is done by our ambassadors 
abroad. 

The power to receive implies the power to refuse to 
receive, and the power to dismiss. The executive of 
any country may refuse to receive or may dismiss the 
ambassador of another country on one of the following 
grounds: 

1. If the nation he represents has not yet been rec- 
ognized as a nation by the government to which he is 
accredited. 

2. Often when the country he represents and the 
country to which he is accredited have a very serious 
quarrel, and always when they are at war. 

3. When the ambassador is personally objectionable 
to the government to which he is accredited. In that 
case some other person will be sent in his place. 

The act of receiving ambassadors is to nations what 
it is to individuals to be on calling terms, or on speak- 
ing terms, except that it is done by agents instead of 
in person. 

This power of the President is one of great responsi- 
bility at times. When in consequence of civil war 
there are two rival governments in a foreign nation, 
the question which government we shall recognize is 
decided by the President, and this recognition might 
even sometimes involve us in war with the side which 
we did not recognize. Or if the President should dis- 
miss the ambassador of some other country on account 
of a difference with that government, it might easily 



196 tf HE PRESIDENT. [11:3. 

lead us into a war. We are favored by Providence by 
having the Atlantic between us and any formidable foe, 
so that the mistakes of our President are not so dan- 
gerous to us as they would be in another situation. 
We have also been fortunate in having Presidents who, 
with the advice of their Cabinets, have managed our for- 
eign relations discreetly, whatever may be said of their 
home policy. 

V. Execution of the laws. — This is the most im- 
portant duty of the President, and of the executive 
officers under his direction. The President does not 
make or repeal the laws (except so far as his veto power 
extends). If he thinks a law a bad one, it is neverthe- 
less his duty to enforce it until it is repealed. He can 
recommend its repeal by Congress, but he must enforce 
it until it is repealed. 

If the President or any officer should enforce that as 
law which is not law, or should go beyond his powers or 
duties as given in the Constitution and Statutes, any 
one aggrieved by such action has a remedy in the 
courts, by some of the various writs used by the courts, 
and by a suit for damages, if any damages have been 
sustained. The President and all his subordinate offi- 
cers are thus subject to the laws. They do not make 
the laws; Congress does that. They do not interpret 
the laws; the courts do that. But it is their duty to 
enforce the laws, and to enforce them in lawful ways. 

If any one violates the law, he can be arrested and 
tried, and punished. If any one refuse to obey the law, 
the executive officers can compel him to obey it, either 
by citing him before the courts for trial and punish- 
ment, or, if necessary, by armed force. 

The President cannot himself do all the work of en- 
forcing the laws, but he can take care that the laws are 



II: 3.] COMMISSIONING OFFICERS. 197 

faithfully executed. He frequently instructs the Dis- 
trict Attorneys and Marshals as to suits or criminal 
cases in the courts, by which violations of law are pun- 
ished. All executive officers of the United States act 
under his direction, and must obey his orders, or risk 
being removed from office. Thus he has ample power 
to see th:.t the laws are enforced. 

VI. Commissioning officers. — When an officer is 
appointed, he receives a commission, signed by the 
President and certified by the great seal, which is 
affixed by the Secretary of State. An officer's term of 
office begins when the President signs his commission, 
whether the officer receives it or not. The following 
things are necessary to holding any office to which the 
President can appoint with the advice and consent of 
the Senate: 

1. The President must nominate. 

2. The Senate must confirm (except during their 
recess). 

3. The President must commission. 

4. The person appointed must accept. 

Other officers only require to be appointed by the 
proper authority and to accept the appointment. 

Under this clause the President might be required by 
law to commission officers, appointed bj T the courts or 
by heads of departments, but this has not been required 
as yet by law. 



198 IMPEACHMENTS. [11:4. 

SECTION 4. 

IMPEACHMENTS. 

ANALYSIS OF THE SUBJECT OF IMPEACHMENT. 

r 1. The President of the United States, 11,4 
I. Who can be J 2. The Vice President of the United 

impeached.. ] States 11,4 

L 3. All civil officers 11,4 

r (a.) Treason 11,4 

II. For what J (b.) Bribery 11,4 

eA I (c.) Other high crimes or misdemean- 

l ors 11,4 



V. Fokms OP 



III. By whom impeached —The House of Representatives.. I, 2, 5 

IV. By whom tried — The Senate 1,3,6 

(a.) The Senate shall be under oath.. I, 3, 6 
(b.) When the President is tried the 

'trial \^ . ".* i Chief Justice shall preside I, 3, 6 

(c.) Two-thirds shall be required to 

convict I, 3, 6 

(a.) Removal from office 1,3,7 

VI. Punishments. •( (b.) Disqualification for holding office 

(^ afterward 1,3,7 

VII The party convicted may also be tried by the courts I, 3, 7 



The President, Vice President, and all civil oncers of the United States, 
shall be removed from office on impeachment for, and conviction of 
treason, bribery, or other high crimes and misdemeanors. 

I. Who can be impeached. — Only civil officers of 
the United States can be impeached. Military and 
naval officers are not civil officers, and cannot be im- 
peached; but they can be tried by court martial. 

Senators and Representatives are not officers, but 
representatives of the States or the people; they can be 
expelled by the House to which they belong; but they 
cannot be removed by impeachment. 

Judicial and executive officers (except military or 
naval) are civil officers within the meaning of this sec- 



11:4.] IMPEACHMENTS. , 199 

fcion, and can be removed from office by impeachment 
and conviction. Any officer who can be removed by 
the President or by other authority would usually be 
removed in this way, if he deserved it, rather than to 
wait for the slow process of an impeachment trial. 

II. For what cax officers be impeached? — Not 
for their private conduct, but only for their official acts. 
For instance, an officer could not be impeached for 
drunkenness, unless it rendered him unfit to perform 
the duties of his office. The Constitution specifies 
three causes for impeachment: 

1. Treason. As this is defined elsewhere in the Con- 
stitution, it consists in " levying war against the United 
States, or in adhering to their enemies, giving them aid 
and comfort. 1 ' 

2. Bribery, that is, receiving money or its equiva- 
lent for using their office to the advantage of some one. 
For instance, it a judge should take a present for decid- 
ing for one party to a suit rather than the other, that 
w r ould be bribery. Or if a revenue officer should t::ke 
money from an importer to let bis goods pass the cus- 
tom house with less than the legal duty, that would be 
bribery. 

3. Other high crimes and misdemeanors. What these 
are is not defined, nor was it meant to be. Cases will 
sometimes arise which cannot be included under any 
law previously enacted, and the Senate must exercise its 
own discretion as to what constitutes these high crimes 
and misdemeanors. It will be guided, however, largely 
by the precedents already made in impeachment trials 
in this country and England. 

III. Disputed questions — 1. Can an officer avoid 
impeachment by resignation? 

No. In 1876, the House of Representatives impeached W. W. 



200 



IMPEACHMENT. 



[11:4. 



Belknap, Secretary of War, for corruption, and he was tried by the 
Senate and acquitted. The proof of his crime seemed to be plain. 
But he had offered his resignation, and it had been accepted by the 
President before the House of Representatives had voted to impeach 
him. In his case the resignation was expressly for the purpose of 
avoiding impeachment. The Senate by a majority, but not a two- 
thirds vote, decided that it had jurisdiction of his case, notwithstand- 
ing his resignation. But upon the final vote, more than one-third 
of the Senators present voted "not guilty " upon each charge, and 
he was acquitted. A part of the Senators voting "not guilty," did 
so expressly upon the ground of want of jurisdiction, because he 
was no longer an officer of the United States. This decision of the 
Senate established the precedent that a civil officer of the United 
States cannot escape impeachment by resignation. 

2. Can an officer be impeached when he is no longer 
in office? 

Probably he can. The case of Belknap would not positively de- 
cide this question, but would lead to a presumption that an officer 
can, at any time in the future, be impeached for acts done while in 
office. The case of an officer whose term of office had expired, 
perhaps many years before the impeachment, would be a different 
one from that of an officer who had resigned in order to escape 
impeachment: As such a case has never been decided by the Sen- 
ate, this question cannot be answered positively. 

IV. A TABLE OF IMPEACHMENT TRIALS. 

The following is a table of impeachment trials before the United 
States Senate: 



When. 



Whom. 



1798.... 


Senator Blount. .. 


1803. . . . 


Judge Pickering.. 


1804.... 


Judge Chase 


1830. . . . 


Judge Peck 


1362 ... 


Judge Humphries 


1868 .. 


PresU Johnson... 


1876.... 


Secretary Belknap 



Why. 



Intrigues with Indian 
tribes 

Intemperance and In- 
sanity 

Partiality and Injus- 
tice 

Abuse of Judicial 
Power 

Treason 

Violation of Tenure of 

Office Act 

Accepting Bribes . 



Result. 



Case dismissed forwant 

of jurisdiction. 
Removed. 

Acquitted. 

Acquitted. 

Removed and disquali- 
fied. 

Acquitted by one vote. 
Acq nil ted. 



This table of course does not include impeachment trials in the 
several States, of which theie have been several. 



III.] THE JUDICIARY DEPARTMENT. 201 



ARTICLE III. 



THE JUDICIARY DEPARTMENT. 

•• Law is the dec]', august foundation, whereon peace and justice rest. 
On the rock primeval, hidden in the past its bases be, 
Block by block the endeavoring ages built it np to what we see." 

— Jamsi RUBBXLL Lowell. 

I. The judicial department defines and applies 

the law. — The third department of the government is 
the judicial department. As the legislative department 

wakes the laws, and the executive department enforces 
them, so the judicial department applies and interprets 
the laws. It is the business of the judicial department, 
in any cases brought before it, to decide whether the 
law applies to those cases, and how far it applies to 
them. 

Thus if a crime is committed, the criminal ought to 
be punished. But in doing this, each department of 
the government has its share. The legislative depart- 
ment has already made a law forbidding that crime, and 
affixing certain penalties for committing it; an executive 
officer arrests the criminal on a warrant issued by a 
judicial officer; after certain preliminaries, the accused 
is tried before a judge and jury, who are judicial 
officers. The question is, whether the accused is guilty 
of the crime charged, and whether that is a violation 
of law; that is, whether the law with its penalties 
applies to this particular case. If it is proved that it 
does, then the criminal is handed over to some executive 
officer to be punished. Now although it is the business 



202 THE JUDICIARY DEPARTMENT. [Ill 

of the executive department of the government to en- 
force the law, no executive officer has a right to punish 
a criminal until he has been found guilty of some vio- 
lation of law; that is, until the judieiary department 
has decided that the law applies to this particular case. 

So with civil suits. It is the business of the judicial 
department to decide upon the proof shown in any case, 
how far the laws apply to the dispute between the 
parties to the suit. When that is decided, it is the duty 
of some executive officer to carry out the law, as it has 
been applied to this case by the courts. 

Now in thus applying the law to particular cases, it 
often becomes necessary to know just what the law is. 
Either the law is not worded clearly or two laws con- 
flict. It then becomes the duty of the courts to decide 
what the law really means, or which of the two laws is 
really law and which is not. In such cases the judicial 
department defines and interprets the law. 

II. The constitutionality of laws. — Here comes 
in the power of the courts to decide the constitu- 
tionality of laws. The highest law is the United States 
Constitution, and all United States and State laws must 
conform to it. If they conflict with it, they are null 
and void, and are no laws. If in any case which comes 
before the courts, a law or a part of a law is found to be 
in conflict with this Constitution, the courts decide that 
the law is unconstitutional, and therefore void. Such 
a decision by any court is entitled to respect unless the 
decision is reversed by a higher court. But when such 
a decision is made by the Supreme Court of the United 
States, the highest court of the land, it is regarded as 
settling the question that the law is unconstitutional. 

It is a mistake to suppose that the Supreme Court is 
constantly deciding constitutional questions, and that all 



Ill: 1.] 



ORGANIZATION. 



203 



constitutional questions come at once before that court. 
Nothing comes before any court except in connection 
with an actual suit or trial. An unconstitutional law 
may stand for years before a case under it is carried up 
to the Supreme Court. Some things from their nature 
cannot be taken into court. And the courts always hesi- 
tate to decide a law to be unconstitutional, and only do 
so when the case is plain. 







SECTION 1. 








ORGANIZATION. 






t> 




(a.) Supreme court 


Ill, 1 


< 

l-H 

I" 


o 
fc.J 

NO 

8 


1. Courts 


f Circuit court.. ' 
I District court, 
(b.) Inferior' < 'ourt of claim* 
courts 1 Supreme court 
1 of the District 
(. of Columbia.. , 

(a.) Term of office— for life 






• III, 1 


g 


or during good behav- 
2. Judges -| j or 


III, 1 




o 


J (b.) Salary not to be diniin- 






• 




I ished 


III, 1 



Tbc judicial power of the United States shall be vested in one Supreme 
Court, and in such inferior courts as the Congress may from time to time 
ordain and establish. The judges both of the Supreme and inferior 
courts, shall hold their offices during good behavior, and shall at stated 
times receive for their services a compensation which shall not be dimin- 
ished during their continuance in office. 

I. In what courts the judicial power is vested. 
The judicial power of the United States is vested in 
one Supreme Court, and in such other courts as Con- 
gress may establish. 

The number and manner of organization of the courts 
have been changed from time to time. There are now 
three classes of United States courts, with two special 
courts. 1 



1 The Territorial courts are not. properly speaking, United States courts. 
A Territory is a State under guardianship", not yet~come of age. The Su- 



20i THE JUDICIARY DEPARTMENT. [HI: 1. 

1. The Supreme Court of the United States, com- 
posed of one Chief Justice and eight Associate Justices. 

2. United States Circuit Courts, 1 each composed of 
one Supreme Judge, one Circuit Judge, and one District 
Judge, or by any one of them sitting alone, or by any 
two of them sitting together. 

3. United States District Courts, 2 each composed of 
one District Judge. At least one of these District 
Courts is located in each State, and in several States 
more than one. 

Special Courts — 1. The Supreme Court of the Dis- 
trict of Columbia, composed of a Chief Justice and four 
Associate Justices. Any one of these may hold a Dis- 
trict Court for the District of Columbia with the same 
jurisdiction as other District Courts of the United States. 

2. The Court of Claims, composed of a Chief Justice 
and four Associate Justices. 

II. Officers of the courts. — These courts, besides 
the judges, have the following officers: 

1. Each court has a clerk, appointed by the court 
and removable by it, who keeps all the records of the 
court, and prepares all documents issued by the court. 

2. Each District Court has a marshal, who is the ex- 
ecutive officer of the court, with the same powers as 
those exercised by sheriffs. He is appointed by the 
President, with the consent of the Senate, and is also 

preme Court of the United States has decided that Territorial courts arc 
not United States courts, in any such sense as to give Territorial judges a 
life tenure of their offices. These judges are appointed for four years uuless 
sooner removed. 

1 There are now nine circuits, corresponding to the number of justices of 
the Supreme Court. One of these is assigned to each circuit, and a circuit 
judge is also appointed for each circuit. 

2 There are now fifty-nine districts. Of these, Alabama, New York, Ten- 
nessee and Texas have three each. Arkansas, Florida, Georgia, Illinois, 
Michigan, Mississippi, Missouri, North Carolina, Ohio, Pennsylvania, South 
Carolina, Virginia and Wisconsin have two each, and the other States one 
each. But as the States of Alabama, Georgia, Mississippi, North Carolina 
and South Carolina have hut one district judge for each State, and Tennessee 
bat two, the whole number of district judges is fifty-two. The Indian Terri- 
tory is attached to the western district of Arkansas. 



Ill: 1.] ORGANIZATION. 205 

marshal for the Circuit Court whenever it sits in his dis- 
trict. 

3. The Supreme Court has a marshal, appointed by 
the court, and the Court of Claims has a bailiff. 

4. Each District Court has a district attorney, who 
represents the United States in the prosecution of all 
criminal cases, and is the lawyer for the United States 
in all civil suits to which the United States is a party. 
The district attorney is appointed by the President, 
with the consent of the Senate, and acts as United 
States attorney also in the Circuit Court, when held in 
his district. In the Supreme Court, the Attorney Gen- 
eral of the United States, or one of his assistants, acts 
as United States attorney. 

5. The Supreme Court has also a reporter, appointed 
by the Supreme Court, who prepares and publishes the 
official reports of all cases brought before it. The re- 
ports now fill many volumes. 

III. Term of office of judges. — The term of office 
of all United States judges is for life, or during good 
behavior. As the only legal way of determining that 
a judge has not behaved well is by impeachment, this 
practically means that United States judges hold 
office for life, unless removed upon impeachment. Only 
two judges have thus been removed. A judge may, 
however, resign; and if he has served ten years, and is 
seventy years old, he will be paid his full salary for the 
remainder of his life. 

The object of making judges hold office for life, is to 
make them independent in their decisions. A judge 
ought not to be influenced in his decisions by the fear 
of removal from office, or by the hope of reappoint- 
ment or re-election. 

IV. Salary of judges. — The amount of the sal- 



206 



THE JUDICIARY DEPARTMENT. [Ill: 2. 



aries of judges is left to Congress. But the Constitu- 
tion provides that their salaries shall not be diminished. 
They may, however, be increased. The object of this is 
to make the judges independent of Congress. 

If it ever should be thought best to decrease the sal- 
aries of the judges, or of an} 7 class of them, it could be 
done in regard to all judges thereafter to be appointed, 
but the salaries of those then in office would not be 
changed. But Congress can raise the salary of all 
judges at any time, and has done so several times. 

SECTION 2. 

JURISDICTION OF THE COURTS. 



Cases. 



x.) Arising under this Con- 
stitution, the laws of 
the U. S. or treaties. . . Ill, 2, 1 
-j (b.) Affecting ambassadors 

or consuls 111,2,1 

(c.) Of admiralty or mari- 
time jurisdiction Ill, 2, 1 



' (a.) To which the U. S. is a 

party 111,2,1 

(b.) Between two or more 

States 111,2,1 

(c.) Of a State against citi- 
zens of another State 

Ill, 2, 1, and Am. XI 

ntroversies -{(d) Between citizens of dif- 
ferent States Ill, 2, 1 

(e.) Concerning land grants 

of different States 111,2,1 

(f.)Of a State against for- 
eigners . . . Ill, 2, 1, and Am. XI 

(g.) Between foreigners and 

citizens 111,2,1 

(a.) In cases affecting ambas- 
sadors and consuls.... 111,2,2 
(b.) When a State is a party. Ill, 2, £ 

r (a.) In all other cases 111,2,2 

\ (b.) Except as modified by 

Congress 111,2,2 



Original jurts 
diction op su 

FREME COURT., 

APELLATE JUR- 
ISDICTION 



Ill: 2, 1J EXTENT OF JCRISDICTI ON. 207 

CLAUSE 1. 
EXTEXT OF JURISDICTION". 

The judici.l power shall extend to all cases, in law and equity, arising under 
this Constitution, the laws of the United State-, and Ire 
which shall be made, under their authority; to all cases affecting ambas- 
sadors, other public ministers, and consuls; to all cases of admiralty 
and maritime jurisdiction; to controversies to which the United States 
shall be a party; to controversies between two or more States; between 
a Mate and citizens of another State; between Citizens of different 
States; between citizens of the same Mate claiming lands under grants 
of different States, and between a State or the citizens thereof, and 
foreign States, citizens or subjects. 

I. Modified by the eleventh amendment. — This 
clause has been modified by the eleventh amendment, 
which reads as follows: 

"The judicial power of the United States shall not be construed to ex- 
tend to any suit in law or equity, commenced or proeecnted agaiust one of 
the United States by citizens of another State, or by citizens or subjects of 
any foreign State. 1 ' 

This amendment abolishes the power of individuals 
to sue a State in the United States courts. It leaves 
everybody the power of suing a State in its own courts, 
if the States allow it. 

II. Cases in law and equity. — A case is an al- 
leged state of facts, brought before a court in a legal 
way by some one who is aggrieved thereby. The 
courts can only act on cases. They cannot decide on 
legal questions, except as they are brought before them 
in actual cases, either as criminal trials or civil suits. 
Thus a legal question may be disputed a long time be- 
fore it is settled by a judicial decision, because no case 
has been brought before the courts which involves that 
question. 

There are questions in regard to the meaning of some 
clauses of the Constitution which have never been de- 



THE JUDICIARY DEPARTMENT. [Ill: 2, 1. 

cicled, because no case lias arisen which brought them 
before the courts. 

These words " cases in law and equity," refer to dis- 
tinctions made by English law, from which our law is 
derived. When the Constitution was adopted, there 
were four classes of courts in England, each having its 
own officers, its own methods of procedure, and its own 
system of law. These courts were called law courts, 
equity courts, admiralty courts and ecclesiastical courts ; 
and the law administered by each was called common 
law, equity, admiralty and maritime law and canon law. 
As there was to be no State church in this country, 
canon law and ecclesiastical courts were needless, and are 
therefore not mentioned in this Constitution. The 
other three divisions of English law are named in this 
paragraph. This clause of the Constitution gives the 
United States courts all cases in admiralty or maritime 
law, and takes them away from the State courts. It 
also gives the United States courts a part of the cases 
which may arise in law or equity, and leaves the rest of 
the cases in law and equity to the State courts. 

Under the power given Congress to organize inferior 
courts, three sets of courts, for law, equity and admiralty, 
might have been organized in imitation of the English 
courts. Congress did not do so. Only one set of courts 
was organized, and they were made courts of law, 
equity and admiralty alike. But the forms of proced- 
ure and the body of law remains different for each class 
of cases. 

No brief definition can be given of the difference be- 
tween law and equity. Two distinctions in the meth- 
ods of procedure, however, can be easily remembered. 
There are no juries in equity cases, and there are no 
criminal trials. 



Ill: 2, 1.] EXTENT OF JURISDICTION. 200 

III. The common law. — The common law of En- 
gland, in its widest sense, is that body of customs, pr 
dents and forms which had gradually grown up in the 
course of English history. These were law in the col- 
onies as well as in the mother country. The colon 

in rebelling against the rule of England, did not wish 
to lose all that was valuable in the institutions of 
England. Just as their State and National govern- 
ments were formed largely on the model of the English 
government, so the practice of their courts has been 
largely the same as the practice of the English courts. 
In* the United States courts, and in most of the State 
courts, the English common law as it stood at the time 
of the Revolutionary War, and so far as it has not been 
repealed by our Constitution and statute laws, is held as 
good law to-day. A notable exception, is the case of 
Louisiana, which we acquired from France, where the 
courts follow the forms and customs of French law. 

IV. Cases under the constitution, laws and 
treaties. — It is plain that the United States courts 
should have jurisdiction of all cases arising under the 
laws of the United States. By Article VI, Clause 2. 
these are made the supreme law of the land, and over- 
rule all State laws or constitutions, when there is any 
conflict between them. 

The United States courts are bound to maintain this 
supreme law of the land in any case brought before 
them. 

It should be remembered that the subjects upon which the United 
States can make laws are limited by this Constitution. The United 
States has full jurisdiction only in the District of Columbia, in the 
territories, on the high seas, in the United States forts, arsenals aud 
dockyards, and on United States ships. Everywhere else its juris- 
diction is limited. Thus if a robbery is committed in any of the 
places named above, the person accused of it will be tried in the 



210 THE JUDICIARY DEPARTMENT. [Ill: 2, 1. 

United States courts and by United States law; 1 but if it is commit- 
ted in the jurisdiction of a State, it will be tried before the courts and 
by the laws of that State. But robbery of the mail, although com- 
mitted within a State, would be tried before a United States court 
and by United States laws, because the United States has jurisdiction 
over post offices and post roads. 

Cases may arise under the Constitution, directly, where there is 
no United States statute law involved. Thus the S'ate of New 
Hampshire passed a law changing the charter of Dartmouth Col- 
lege. As the State courts refused to declare the law unconstitu- 
tional, the case was carried into the United States Supreme Court. 
The Supreme Court decided that the charter of a corporation is a 
contract between the State and the corporation, which cannot 
be changed without the consent of both parties. As the State law 
impaired the obligation of a contract (I, 10, 1), the Supreme Court 
decided it to be unconstitutional, and therefore null and void. 
Th ; s was a case under the United States Constitution. 

Cases may also arise under treaties made with foreign powers. 
These treaties, while they last, are laws of the United States, and 
binding on every citizen. The punishment for violation of treaties 
necessarily belongs to the United States courts. Under the Con- 
federation, when we had no United States court, these cases came 
before State courts, which generally failed to punish their violation. 
The consequence was, our reputation as a nation suffered, and we 
might easily have been involved in a war, because of neglect to 
compel our citizens to obey our own treaties. 

V. Cases affecting ambassadors, etc. — All cases 
affecting ambassadors, other public ministers, or con- 
suls, are tried in the United States courts. These are 
officers of foreign nations, and the United States are 
bound to protect them, and treat them accordiog to the 
rules of international law. It is therefore necessary 
that all cases affecting them should be tried in the 
United States courts, not in State courts, as the United 
States is responsible for their treatment. 

J If in an organized territory, the trial would be under the laws of that 
territory. But these territorial laws are only made laws because an act of 
Congress has allowed the territory to make its own laws within certain 
limits. Territorial laws are thus virtually United States laws. 



Ill: 2, 1.] EXTENT OF JURISDICTION. 211 

Bat not all cases affecting ambassadors can be tried by our courts, 
for by the law of nations, ambassadors and other public minis 
are not subject to the criminal or civil law of the country to which 
they are ambassadors, but are subject to the laws of their own 
country. Thus, if the English ambassador to this country should 
commit a crime, he could not be tried here, but our government 
would have to write a statement of the case to the English govern- 
ment, whereupon he would be recalled and tried in England under 
English laws. The same is true of civil suits. The ambassador of 
a foreign power cannot be sued in this country, but if he run in debt 
and refuse to pay, he must be sued in the country to which he be- 
longs. The family and officers and servants of an ambassador 
share in these privileges in a less degree. But consul^ have no such 
privileges under the law of nations, except in heathen or Moham- 
medan countries. 

VI. Cases of admiralty and maritime jurisdic- 
tion. — These are cases arising on the high seas and 
navigable waters. It is a ver} 7 difficult question to ex- 
actly define the limits of this kind of jurisdiction. The 
courts have not been able to doit; but have made many 
conflicting decisions in regard to the extent of maritime 
jurisdiction. 

In general terms, we may say admiralty and maritime jurisdiction 
include: 

1. All questions of prizes and captures at sea. 

2. The trial of all crimes committed on the high seas or waters 
of the sea outside of any country, and of all offenses against the law 
of nations. 

3. All cases involving damages done on the high seas, and some 
cases on waters of the sea where the tide ebbs and flows. 

4. Many cases concerning contracts or claims for services or sales 
at sea or in foreign ports. 

Most of the above classes of cases evidently belong to the United 
States courts, because States have no jurisdiction over them. (Sec. 
I, 8, 10 and 11.) 

VII. Controversies to which the United States 
is A party. — The United States may be a party to a 
controversy either, 



THE JUDICIARY DEPARTMENT. [Ill: 2, 1. 

1. As prosecutor in a criminal case arising under 
United States law. All such cases are prosecuted in 
the name and by the authority of the United States. 
The actual work of the prosecution is done by the At- 
torney General, or by the District Attorney of the 
district in which the case belongs. He may be assisted 
by other lawyers, if necessary. 

2. As plaintiff in a civil suit. These are prosecuted 
when the United States has a legal claim against any one. 

In violations of the revenue, there may be both a 
criminal prosecution and a civil suit. 

3. As defendant in a civil suit. If any one has a 
claim against the United States, which the proper 
officer refuses to pay, he may begin a suit in the Court 
of Claims and in no other court. But if the case is de- 
cided against the United States, the claim cannot be 
paid until Congress makes an appropriation for it 
(I, 9, 6). 

VIII. Controversies between two or more 
states. — It is evident that these controversies must 
be tried in the United States courts, unless they can be 
settled by arbitration. These suits must be begun in 
the Supreme Court. 

No District or Circuit Court has jurisdiction in any 
case in which a State is a party (see Clause 2). When 
the Constitution was adopted, there were many unset- 
tled controversies between States, especially in regard 
to territory. Before the Revolution, controversies be- 
tween the colonies were heard before the King in coun- 
cil. During the Revolution, there was no tribunal to 
decide controversies between the States. The disputes 
between them in regard to land grants led to much 
trouble and violence, and might easily have led to war 
between the States. 



Ill: 2, 1.] JURISDICTION OF THE COURTS. 213 

The Articles of Confederation provided for the trial 
of such controversies by commissioners. These com- 
missioners acted really as arbitrators, hut had no 
authority to enforce their decisions. The Supreme 
Court can now decide cases between States, witli author- 
ity, and its decision is final, and must be obeyed. 

IX. Controversies between a state and citiz 

of another state. — Suits brought by a State against 
citizens of another State must be tried in the Supreme 
Court. Other United States courts have no jurisdiction 
(Clause 2). Citizens of one State cannot sue another 
State, except in the courts of that State (Amend- 
ment IX). 

X. Controversies between citizens of differ- 
ent states. — A United States court will be likely to 
be more impartial than a State court, in a suit between 
its own citizens and the citizens of another State. Con- 
troversies between citizens of different States are there- 
fore tried in the United States courts. 

But the law which regulates such cases is the law of 
the State in which the case occurs. Thus if a citizen of 
Wisconsin owes a citizen of New York, the citizen of 
New York may sue in one of the United States district 
courts in Wisconsin. But that court will try the suit 
according to the laws of Wisconsin; and in levying an 
execution, the Wisconsin debtor would be entitled to 
the exemption provided by Wisconsin law. Congress 
cannot legislate, except for certain things, within the 
limits of a State (I, 8). But the United States courts 
do not always follow the decisions of the State courts 
upon the law of each State. 

Therefore, when the United States courts take juris- 
diction of controversies between citizens of different 



214 THE JUDICIARY DEPARTMENT. 

States, they do not take United States law, but State 
law, when the subject in dispute is not one of those cov- 
ered by the powers of Congress. 

A citizen of the United States is a citizen of the State 
in which he resides (Amendment XIV). But a citizen 
of a territory or of the District of Columbia is not a cit- 
izen of any State, and is not included in this provision. 

XI. CONTROVERSIES ABOUT LAND GRANTS OF DIF- 
FERENT states. — Even in cases between citizens of the 
same State, when the controversy is respecting land 
claimed under grants from different States, the United 
States courts have jurisdiction. Thus all controversies 
respecting conflicting land grants go into the United 
States courts. In these cases, although the States are 
not, in form, parties to the suit, they are involved in it. 
When a State grants land to individuals, it guarantees 
the title to the land. If the title is not good, the State 
is bound in good faith to make the title good or pay 
damages. Every State is therefore interested in the 
titles to land it has granted, and all the more so because 
a single case will usually involve the questions of law 
and fact on which the titles to many tracts of land 
depend. 

XII. Conflicting claims of states to land. 

The charters of several of the colonies and the grants to proprie- 
tors, given by different sovereigns of England, were generally 
drawn very loosely, and often overlapped one another. As the 
country settled, this led to controversies between the colonies, some 
of which had been settled by the King in council, and some of 
which were left undecided at the time of the Revolutionary War. 
The States had granted land under these conflicting claims to two 
or more sets of settlers, who fought it out in legal and illegal ways, 
as men will fight when the title to their homes is in question. The 
chief disputes in regard to territory and land grants made by States 
were: 



Ill: 2, 1.] JURISDICTION OF THE COURTS. 215 

1. The whole State of Vermont, which was claimed both by I 
Hampshire and New York'. 

2. A large part of western New York was claimed by Massachu- 
setts, as well as by New York. 

3. Northern Pennsylvania was claimed by Connecticut, as well as 
by Pennsylvania. 

4. The Northwest Territory (Ohio, Indiana, Illinois, Michigan 
and Wisconsin) was claimed by Virginia by right of conquest, and 
parts of it by other States under their charters. 

Besides these, there were questions of the exact boundary line 
between almost all neighboring States. These questions were 
some of them settled just before the Constitution was adopted, and 
others afterwards. In general we may say, that men who had 
bought land and settled on it were secured in their titles to it, but 
only after a great deal of trouble; and that the State bound 
were settled as they now stand. 

XIII. Controversies between a state, or the 

CITIZENS THEREOF, AND FOREIGN STATES, CITIZENS OR 

subjects. — All cases to which foreign states or their 
citizens or subjects are parties, come before the United 
States courts. It is the United States government 
which is held responsible for our treatment of foreign- 
ers. The United States ought therefore to have juris- 
diction over cases in which foreigners are parties. But 
foreigners cannot sue a State in the United States 
courts. (Amendment XI.) 

XIV. Judicial powers exercised by other de- 
partments OF THE GOVERNMENT. 

A. Judicial powers of the leginlatice department : 

1. Power of punishing members for misconduct. (I, 5, 2. ) 

2. Power of punishing other persons for contempt. 

3. Power of impeachment and removal from office. (I, "2. 5, 

and I, 3, 6 and 7, and II, 4.) 

4. But no bill of attainder or ex post facto law. (I, 9, 3.) 



916 THE JUDICIARY DEPARTMENT. [ill: 2, 2. 

B. Judicial powers of the executive department: 

1. The President's power to pardon. (II, 2, 1.) 

2. Powers of courts martial. (I, 8, 14, and Am. V.) 

3. Power under military law. (I, 9, 2.) 

4. But cannot make unwarrantable searches and seizures. 

(Am. IV.) . 

5. And cannot hold persons for trial without a presentment 

or indictment of a grand jury. (Am. V.) 

6. Nor hold a person for trial twice for the same offense. 

(Am. V.) 

7. Nor deprive any person of life, liberty or property without 

due process of law. (Am. V.) 

CLAUSE 2. 
ORIGINAL AND APPELLATE JURISDICTION. 

In all cases affecting ambassadors, other public ministers and consuls, and 
those in which the State shall be a party, the Supreme Court shall have 
original jurisdiction. In all the other cases before mentioned, the Su- 
preme Court shall have appellate jurisdiction, both as to law and fact; 
with such exceptions, and under such regulations as the Congress shall 
make. 

I. Original jurisdiction of the supreme court. — 
When it is said that the Supreme Court has original 
jurisdiction in certain cases, it is meant that these cases 
must be begun in the Supreme Court. Other cases may 
reach the Supreme Court, but only when they have been 
tried in lower courts, and an appeal has been taken 
from their decisions to the Supreme Court. 

The Supreme Court has original jurisdiction in two 
classes of cases only: 

1. In all cases affecting ambassadors, other public 
ministers and consuls. 

2. In all cases where a State is a party. 

In these cases original jurisdiction is given to the 
Supreme Court, not because the cases are always im- 
portant, but because there are important parties to the 
suit. 



Ill: 2, 3.] TRIAL OF CRIMES. 217 

II. Appellate jurisdiction of the supreme court. 
When it is said that the Supreme Court has appel- 
late jurisdiction in other cases, it is meant that other 
cases must be begun in some lower court, but may be 
taken to the Supreme Court on an appeal from the <1 - 
cisions of the lower courts. This appellate jurisdiction 
is to have such exceptions and be under such regula- 
tions as Congress shall make by law. 

CLAUSE :;. 
trial of crimes. 



i 






1. By jur> except in impeachment 111,0, 3 

8. Held in State aud district where the crime is 

committed Ill, 2, ft, and Am. VI 

3. If not committed in any State, where directed by 

law 111,3,3 

4. Forms of trial. (See Bill of Ri-hts.) 



The trial of all crime*, except in cases of impeachment, shall be by jury; 

and such trial shall be held in the Slate where the said crimes shall have 

been committed ; but when not committed within any State, the trial 

shall be at such place or places as the Congress may by law have directed. 

[See also Amendments V, VI, VII.] 

I. Trial by jury. — A jury consists of twelve men 
impartially chosen. All questions of fact in criminal 
trials are decided by the jury; and questions of law are 
decided by the judge, with some exceptions. No person 
can be convicted of any crime in a United States court 
unless a jury unanimously find him guilty. If the 
jury unanimously find him not guilty, he is released, 
and can never be tried again on that charge. If the 
jury disagree, a new trial must be had with a new juiy. 

It is required by amendment VII, that in all suits at 
common law, where the amount is more than twenty 
dollars, the right of trial by jury shall be preserved. 
This does not include equity cases, or admiralty or mar- 



218 THE JUDICIARY DEPARTMENT. [Ill: 2, 3. 

itime cases, which are not governed hy the common law. 
These cases are often so complicated that it requires 
skilled judges to decide them, and a jury might do great 
injustice through ignorance of the law which governs 
these cases. 

Cases of impeachment have already "been provided 
for. An impeachment trial is not a criminal trial, but 
a political proceeding to remove from office an un- 
worthy officer. This does not prevent such an officer 
from being also tried in the courts for a crime, if he has 
committed one. Cases of impeachment are therefore 
not tried before a jury, but before the Senate sitting as 
a high court of impeachment. 

A large part of all the cases which come before the 
district and circuit courts require the aid of a jury. A 
jury is thus a part of the judicial department, for the 
time being. This is one of the checks and balances of 
our Constitution, that judges shall not decide the 
plainer questions of fact; but that these are left to the 
judgment of twelve citizens, who are not lawyers. 

II. Where trials are held. — Criminal trials must 
be held in the State where the crime was committed. 
Each State has at least one district court, so that there 
is no difficulty to the United States. This provision is 
intended as a benefit to the accused. It leaves him 
nearer to his friends, makes it easier to procure his wit- 
nesses, lessens his expenses, and gives him the benefit 
of the natural prejudices of the jury for a citizen of 
their own State. 

Where crimes are not committed in any State, they 
are tried in some specified court. When committed 
on the high seas, they are tried in the State where the 
vessel first arrives. 



Ill: 3, 1.] 



TREASON. 



219 



III. Privileges of accused persons. 

For these, see Amendments IV, V, VI and VIII. These privi- 
leges regulate the methods of procedure in courts, and therefore 
might be treated here. But they belong properly under the Bill of 
Rights, where trial by jury really also belongs. 



SECTION 3. 
TREASON. 





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1. Definition.. 



2. Mode of 

YICTION'.. 



CON- 



3. ruXISUMENT 



(a.) Lcving war agiinst Ihc 
U. S 

(b.) Or adhering to their en- 
emies, (riving them aid 
and comfort 

(a.) Testimony of two wit- 
nesses to the same act 
(b.) Confession in open court 

(a.) Declared by Congress. .. 

(b.) But no corruption of 
blood or forfeiture, ex- 
cept during the life of 
the traitor 



Ill, 3, 



III, 3, 1 



I IT. 8, 1 

III.:). 1 

III, 3, 2 



III, 3, 2 



CLAUSE 1. 



THE TRIAL OF TREASON. 

Treason against the United States shall consist only In levying war against 
them, or in adhering to their enemies, giving them aid and comfort. No 
person shall be convicted of treason unless on the testimony of two 
witnesses to the same overt act, or on confession in open court. 

I. The reasons for this section. — Treason is the 
highest crime against society. It is an attempt to sub- 
vert the government, and it deserves severe punish- 
ment. But the history of England is full of instances 
of that being called treason which was not really trea- 
son; of innocent persons being convicted of treason, 
and of extreme and oppressive punishments for treason. 
To prevent such things in this country, this section 
was put into the Constitution. 



220 THE JUDICIARY DEPARTMENT. [Ill: 3, 1. 

II. The DErisrmcxN" of treason. — Treason against 
the United States is defined to consist only in levying 
war against them, or in adhering to their enemies, giv- 
ing them aid and comfort. These words are taken from 
an old English statute, passed five hundred years ago, 1 
which defines treason against the King of England, 
and which was in force at the time of the Revolution. 
Other things were made treason by this statute, but 
these two things were the only ones which the framers 
of the Constitution thought should be made treason 
against the United States. 

It is not treason to conspire against the United States, 
or to agree to levy war, any more than it is murder to 
conspire to commit murder. But it is a less crime. It 
is not until the war is actually levied that there can be 
treason. But as soon as a rebellion against the govern- 
ment or a war by a foreign power is actually begun, 
then any assistance given the enemy is treason. In 
time of war or rebellion we ought to be careful of our 
acts, that we do not aid the enemy indirectly. When 
the country is at war, she calls for the help of all her 
citizens, and at least demands that they shall not help 
her enemies. 

III. The proof of treason. — No person ought to 
be convicted of so odious a crime as treason except on 

iThis is the famous statute of 25 Edward III., which defines treason to he: 

1. To compass or imagine the death of the King, Queen, or their eldest 
eon and heir. 

2. To violate the King's wife, or his eldest daughter unmarried, or the 
wife of his eldest son and heir. 

3. To levy war against the King in his re aim. 

4 To adhere to the King's enemies in the realm, by giving them aid and 
comfort, or by sending them intelligence or provisions, or telling them 
arms. 

5. To slav the chancellor, treasurer, or the King's justice, while in their 
place administering justice. 

Many other things were at one time or ano'her made treason in England. 
Our Constitution adopts the third aud fourth of the above only. 



111:3,2.] TREASON. 221 

the clearest evidence. The Constitution, therefore, re- 
quires that the charge should be proved, either — 

1. By the testirnon} T of two witnesses to the same 
act. This act must be an overt act, that is, an open act. 
These witnesses must testify to the same act; any num- 
ber of witnesses each to a separate act are not allowed. 
This is to give an opportunity to compare the testimony 
together and to detect false swearing. 

2. Or by a confession in open court. A confession 
in private may easily be misunderstood or misstated by 
the person to whom the confession was made. The 
confessiou, therefore, must be made in open court. It 
would be sufficient for the accused to simply plead 
guilty at the trial to make it a confession in open court. 

CLAUSE 2. 

THE PUNISHMENT! OF TREASON. 

The Congress shall have power to declare the punishment of treason, hut 
no attainder of treason shall work corruption of blood or forfeiture ex- 
cept during the life of the person attainted. 

I. The reason for this clause, — The punish- 
ment of treason under English law was very severe. 
The traitor was put to death in a barbarous manner; ' 
his whole property was confiscated, he was attainted, 
and this corruption of blood descended to his posterity 
so that no one could inherit from him or through 
him. 

i The details of the death of a convicted traitor in England were: 

1. lie was drawn to the place of execution on a hurdle or sleclgc. In an- 
cient times he was dragged on the ground. 

2. He was hanged by the neck, but cut down before he was dead. 

3." His heart and entrails were drawn out of his body while he was still 
alive, and burnt in his presence. 

4. His head was cut off, and his body divided into four quarters, which 
were in ancient times stuck over the gateways of London or other cities. 

The above named punishments are commonly referred to as hanging, 
drawing and quartering. The King could commute this punishment to be- 
heading. Women were only hanged. 



222 THE JUDICIARY DEPARTMENT. [Ill: 3, 2. 

Such extreme and barbarous punishments are forever 
forbidden in the United States by the Constitution. 
Congress has declared the punishment of treason to be 
death by hanging. A less punishment may be inflicted, 
but not less than imprisonment for five years and a fine 
of ten thousand dollars. 

II. Attainder of treason. — The conviction of 
treason under the common law of England involved 
attainder, that is, it tainted the person so convicted. 
Persons could also be attainted by a bill of attainder 
without a trial, which has the same effect. A convic- 
tion of treason of itself brought an attainder of treason 
on the person convicted. No bill of attainder was 
needed in such a case. 

This attainder in either case worked corruption of 
blood and forfeiture. Any person attainted, by that 
fact became corrupt in blood, and forfeited all his prop- 
erty, titles and honors. 

The Constitution forbids bills of attainder (I, 9, 3, and 
I, 10, 1), so that no person can be attainted except by a 
regular trial, and then only for treason as defined in this 
section. But it does not abolish attainder of treason. 
It only limits its effects to the person thus attainted. 

III. Corruption op blood. — Under the common 
law, corruption of blood follows from any attainder. 
" By corruption of blood all inheritable qualities are 
destroyed, so that an attainted person can neither in- 
herit lands nor other hereditaments from his ancestors, 
nor retain those he is already in possession of, nor trans- 
mit them to any heir. And this destruction of all in- 
heritable qualities is so complete that it obstructs all 
descents to his posterity, whenever they are obliged to 
derive a title through him to any estate of a remote an- 
cestor. So that if a father commits treason, and is at- 



111:3,2.] TREASON. 223 

tainted and suffers death, and then the grandfather dies, 
his grandson cannot inherit any estate from his grand- 
father, for he must claim through his father, who could 
convey to him no inheritable blood. Thus the inno- 
cent are made the victims of a guilt in which they did 
not, and perhaps could not, participate, and the sin is 
visited upon remote generations." ' This injustice of the 
English common law is forbidden by this clause. 

IV. Forfeiture. — By the English common law. 
an attainder of treason worked not only corruption of 
blood but also forfeiture; that is, a person convicted 
of treason forfeited all his property of every descrip- 
tion, and all his titles and honors. Persons were often 
convicted of treason purposely to confiscate their prop- 
erty. u Rapacity has been thus stimulated to exert it- 
self in the service of the most corrupt tyranny; and 
tyranny has been thus furnished with new opportunities 
of indulging its malignity and revenge, of gratifying its 
envy of the rich and good, and of increasing its means 
to reward favorites and secure retainers for the worst 
deeds. 11 3 

The Constitution limits this b}' providing that no at- 
tainder of treason shall work corruption of blood or 
forfeiture, except during the life of the person attainted. 
A conviction of treason in the United States does not 
of itself carry any corruption of blood or forfeiture. 
Treason can be punished in such way as is prescribed by 
law, like any other offense; but the common law pun- 
ishments of treason are abolished by the Constitution. 
If the Constitution had not abolished them, it might 
have been claimed that as the common law is in force 
in this country so far as it is not expressly repealed, 

i Story on the Constitution, section 1299. 
2 Story on the Constitution, section 1300. 



224: THE JUDICIARY DEPARTMENT. [Ill: 3, 2. 

that these common law punishments for treason were 
in force in the United States. 

V. Disputed questions. 

1. Can Congress prescribe, as the punishment of treason, the con- 
fiscation of all the traitor s property ? It is agreed that a fine can 
be imposed, which might be in some cases the same thing as a 
confiscation of all the traitor's property. It is also agreed that 
Congress can by law confiscate all the property of persons duly con- 
victed of treason, if the confiscation lasts only during their lives, 
and if at their deaths the property confiscated is allowed to revert 
to their heirs. But if Congress should provide by law that the 
property of persons convicted of treason should be confiscated for- 
ever, would that be constitutional ? The case has never been decided 
by the courts. Most writers on the Constitution seem to think that 
such a law would be constitutional. But because of the doubt, 
such a law has never been passed. 

2. Can States punish treason ? As a fact, the Constitutions and 
statutes of all or nearly all the States provide for the punishment 
of treason against themselves. Persons have been convicted and 
hung for treason against a State. The case of John Brown, who 
was hung for treason against Virginia, is the most noteworthy one. 
But some writers on the Constitution hold, that as a State has no 
complete sovereignty, there can be no treason against it. No case 
has ever been decided in the Supreme Court. 

A State cannot punish treason against the United States. But 
if, under this Constitution, there can be such a thing as treason 
against a State, then the State can define and punish it. 

VI. Treason trials. 

During and after the Revolutionary war many persons were 
attainted of treason against their States for acting with the royal 
troops. A large amount of property was confiscated, much of 
which was afterwards restored. This wa? before the adoption of 
this Constitution. Under the United States laws, no person has 
ever been convicted of treason. The two most famous cases, were 
the trial of Aaron Burr and the case of Jefferson Davis. 

Aaron Burr had been Vice President of the United States, and 
had lacked only one vote in the House of Representatives of an 
election as President. Disappointed of his ambition to be Presi- 
dent, he engaged in a scheme, the object of which was supposed to 



Ill: 3, 2.] TREASON. , 225 

i 

be to set up an independent nation west of the Alleghany Mount- 
ains. But his scheme, whatever it was, was frustrated, and he was 
arrested and tried for treason in 1807. He was acquitted for lack 
of legal proof; but was universally despised. 

Jefferson Davis was one of the conspirators in the plot of the 
Southern leaders to force the Southern States into secession, and 
organize a separate nation in the South. When the scheme was 
accomplished, he was elected President of the Southern Confeder- 
acy. When the civil war was closed by the victory of the Union 
arms, he was captured and held for trial. But his case was never 
brought to trial, and he still lives. No other nation ever went 
through a civil war without trials for and punishments of treason. 




226 



RELATIONS OF THE STATES. 



[IV. 



ARTICLE IV. 



RELATIONS OF THE STATES. 

A slow-developed strength awaits 

Completion in a painful school ; 
Phantoms of other forms of rule 

New Majesties of mighty States." 

— TiSNNrSON. 

ANALYSIS OF THIS ARTICLE. 



I. State 

ORDS 



Re c- 



II. Inhabitants 
of otiiek 
States 



r 1. Each State shall give full faith to 
J the records of every other State. 
| 2. Congress shall prescribe the man- 
L her of proof 

C 1. Privileges of citizens shall be 
equal 

■I 2. Fugitive criminals shall be given 

! UP 

(^ 3. Fugitive slaves shall be given up. 



IV, 1 
IV, 1 

IV, 2, 1 

IV, 2, 2 
IV, 2, 3 



III. New States 

AND TERRI- ^ 
TORIES , 



(a.) Admitted by 
Congress .. 
. (b.) States not 
1 . Admission of J changed 

new Slates. 1 cnangea 

without 
their own 
consent ... 

(a.) Congress 
may dis- 
pose of it..' 

(b.) Congress 
may legis- 
late for it.. 

(c.) State claims 
not affected 

(d.) U. S. claims 
not affected 



2. Territory of 
the United 
States 



IV, 3, 1 

IV, 3, 1 

IV, 3, 2 

IV, 3, 2 
IV, 3, 2 
IV, 3, 2 



IV. Protection 
of States .. 



1. Guarantee of republican govern- 

ment IV,4 

2. Protection against invasion ...... IV, 4 

3. Protection against domestic vio- 

lence ... IV, 4 



IV: 1.] STATE RECORDS. 227 



1. Toe'ectU. S. Senators I, 3, 

2. To prescribe details of elections to 
Congress (-ubje.t to tha action 
of Congress) 1,4, 

3. To prescribe the manner of ap- 
pointing presidential electors.. II, 2, 

4. To vote on proposed amendments, V. 

VI. Other powers of State governments (see 000). 



V. Powers of 
State Gov- 

EKN M E N T 
OVEU U. S. 
GOVEIIN- 
MENT 



VII. States sub- 
ordinate to 
U. S 



1. State judges bound by U. S. Con- 

stitution, in spite of State laws, VI, 

2. State officers and legislators to 

swear to support U. S. Constitu- 
tion VI, 



SECTION 1. 



STATE RECORDS. 

Full faith and credit shall be given in each State to the public acts, records 
and judicial proceedings of every other state. And the Congress may 
by general laws prescribe the manner in which such acts, records and 
proceedings shall be proved, and the effect thereof 

I. The reason" for this section. — The laws and 
records of one nation are not accepted in the courts of 
another nation with full faith and credit, but only 
under certain limitations and conditions. But as we 
are one nation, and not a collection of nations, it is 
provided that the official records of one State shall have 
full faith and credit given them in every other State. 
These records are not to be treated as the records of a 
foreign State, but as the records of another part of the 
same nation. 

II. What documents are embraced in this sec- 
tion. — The following documents are embraced in this 
clause : 

1. Public acts; that is, the Constitutions and statute 
laws of the States. 

2. Public records; such as registration of deeds and 



RELATIONS OF THE STATES. [IV: 2, 1. 

wills, records of marriages, and journals of the legisla- 
ture. 

3. Judicial proceedings; that is, judgments, writs and 
processes of courts, and published reports of decisions. 

III. Marker of proof. — Congress may by law 
prescribe the manner of proving these documents, and 
the effect thereof. Congress has done this, and there is 
now one uniform manner of proving public documents. 
And such documents have the same effect in any State 
as they have hy law or usage in their own State. 

IY. The value of this section. — The principal 
value of this clause is to prevent endless controversies 
over the titles to property. Where these have been 
settled in one State, they are held good in every other 
State. A man cannot begin over again a law suit which 
has once been settled, by simply moving from one State 
into another. 

SECTION 2. 

relations of states to the inhabitants of other 

STATES. 

CLAUSE 1. 
PRIVILEGES OF CITIZENS. 

The citizens of each State shall be entitled to all privileges and immunities 
of citizens in the several States. 

I. Privileges of citizens of one state in any 
other state. — As this is one nation, not a collec- 
tion of nations, it is plain that intercourse between the 
States should be as free as possible. This clause pro- 
vides that no State shall give its own citizens any spe- 
cial privileges over the citizens of sister States. If any one 



IV: 2, 2.] FUGITIVE CRIMINALS. 229 

is a citizen in Illinois, for instance, and goes into Wiscon- 
sin, he is entitled to all the privileges of a citizen of 
Wisconsin, and under the same limitations. He can en- 
gage in any business, hold any property, he married or 
divorced, and be protected by the laws, under the same 
conditions as a citizen of Wisconsin. But if the State 
of Illinois gives its citizens some special privilege which 
the State of Wisconsin docs not give, he does not carry 
that privilege with him in going to Wisconsin. When 
there he has all the privileges of citizens of AVisconsin, 
but no more. 1 

This clause should now be studied in connection with 
the first clause of the fourteenth amendment. Two 
questions are reserved for that place: 1. Who are citi- 
zens of the United States? 2. What are the privil< 
and immunities of citizens? 

CLAUSE 2. 

FUGITIVE CRIMINALS. 

A person charged in any State with treason, felony, or other crime, who 
shall flee from justice, and he found in another State, shall, on demand 
of the executive authority of the State from which he fled, be delivered 
up, to be removed to the State having jurisdiction of the crime. 

I. Extradition laws. — In ancient times, criminals 
who escaped into another country, generally escaped 
punishment thereby. Civilized nations now generally 
give up escaped criminals to one another. This is done 
by virtue of special treaties, called extradition treaties. 
Criminals are usually given up by one nation to another 
only for such crimes as are named in the treaties and 

*Thus the Supreme Court decided that a law of Maryland was unconsti- 
tutional, which imposed a license on all traveling salesmen who were not 
citizens of Maryland. If the law had imposed the license on all traveling 
salesmen, it would have been constitutional. But as it discriminated against 
citizens of other States, it violated this clause of the United States Consti- 
tution. 



230 RELATIONS OF THE STATES. [IV: 2, 2. 

under the forms prescribed by them. But as a matter 
of courtesy, nations which have no extradition treaties 
with one another, often give up each other's criminals. 

II. State extradition of criminals. — As we are 
one nation, this extradition of criminals between the 
States is made to depend not upon treaties, but upon the 
Constitution. This provision has been made by act of 
Congress to apply to the Territories and the District of 
Columbia as well as to the States. 

In the case of a person accused of any crime against a State law, 
the usual rule in all the States is, that a warrant must first be made 
out for his arrest by some proper officer, based on probable evidence. 
These warrants are good only within the jurisdiction of the State. 
But the person to be arrested on the warrant may escape from the 
State, or he may escape from the officer after his arrest and get out 
of the State. In either case there is just one course to pursue un- 
der this Constitution. The officer who has the warrant applies to 
the Governor of his own State, who then issues a requisition upon the 
Governor of the State to which the accused person has fled. Upon 
this requisition, the Governor who receives it authorizes some offi- 
cer of his own State to arrest the person called for in the requisi- 
tion, and hand him over to an officer from the State which demands 
him. In the case of a person convicted of a crime who escapes from 
prison, the course is the same. 

To illustrate, let us suppose that a murder is committed in Illinois, 
and that a person who is supposed to have committed it has gone 
across the line into Wisconsin. A warrant is made out in Illinois 
by some judicial officer, and given to a sheriff' or deputy sheriff. 
Application is made to the Governor of Illinois in person, or by mail. 
He issues a requisition on the Governor of Wisconsin which the 
Illinois officer presents to the Governor of Wisconsin. He author- 
izes some Wisconsin officer to make the arrest and deliver over 
the person named in the requisition to the Illinois officer, by whom 
he is taken to the county where the crime was committed, and put 
on his trial. 

III. Con-current jurisdiction of states. — The 
jurisdiction of a State extends to the boundaries of the 



IV: 2, 3.] FUGITIVE SLAVES. 231 

State, except where a lake or river lies in several States. 
In that case they all have concurrent jurisdiction upon 
the lakes or river. That is, a crime committed on the 
lake or river may be tried in the courts of any of the 
States in which it partly lies. Thus, Lake Michigan 
lies partly in Michigan, partly in Wisconsin, partly in 
Illinois and partly in Indiana. A crime committed on 
the waters of Lake Michigan may be tried in the courts 
of Michigan, Wisconsin, Illinois or Indiana, whichever 
is most convenient. All questions are thus avoided 
about the exact boundary line, which would be difficult 
to determine exactly on the water. 

IV. A DISPUTED QUESTION". 

Is a Governor obliged to surrender any person called for by the 
Governor of another State ? There is no law to compel a Governor 
to do so. And Governors do not always give up persons upon 
the requisition of the Governors of other States. They look iuto each 
case for themselves, and decide it upon its merits. Perhaps the 
most remarkable case occurred in 1878. Many years before, a 
murder had been committed in Pennsylvania. The supposed mur- 
derers, two in number, moved to Illinois, and remained there as 
good citizens till the year 1878, when an attempt was made by the 
authorities of Pennsylvania to arrest and try them, by means of a 
requisition upon the Governor of Illinois. But the Governor of 
Illinois refused to deliver them up. 

As the law now stands, a Governor is not compelled to obey the 
requisition of the Governor of another State. Whether it would 
be constitutional for Congress to pass a law to that effect, is an 
undecided question. 

CLAUSE 3. 
FUGITIVE SLAVES. 

Ho person held to service or labor in one State, under the laws thereof, es- 
caping into another, shall, in consequence of any law or regulation 
therein, he discharged from such service or labor, but shall be delivered 
up on claim of the party to whom such service or labor may be due. 



232 RELATIONS OF THE STATES. [IV: 2, 3. 

I. This clause obsolete. — The same principle ap- 
plies to fugitive slaves as to fugitive criminals. As we 
are one nation, runaway slaves were not to gain their 
freedom by crossing the boundary line of any State. 
The free States were to respect the institution of slav- 
ery in the slave States. If a master carried his slaves 
to a free State, they became free ; but if a slave ran away 
to a free State, he still remained a slave, and should be 
given up on demand. 

All this is changed by the Civil War, and the aboli- 
tion of slavery which it brought about. Under the 
thirteenth amendment, there can be now no slavery in 
any State, and consequently no fugitive slaves. 

II. Persons to whom it applied. — The persons 
included in the phrase, "persons held to service or 
labor," were: 

1. Slaves, who were owned like cattle, and who were 
held to service for life, and their children after them. 1 

2. Apprentices, who are boys bound out for a term of 
years to learn a trade. They are not slaves, but their 
masters have a right to their services during the time 
for which they are bound out. The old system of ap- 
prenticeship, however, has almost gone out of use. 

3. Other persons bound out to service for a term of 
years. It was once common for persons to bind them- 
selves out for a term of years, to secure a passage to 
this country. When they arrived, their services for 
that time were sold to any one who would buy them. 
This practice has also passed awa}\ In some States, 
pauper children are still bound out till they come of age. 

1 The student should notice here, as elsewhere in the original Constitu- 
tion, the words slave and slavery are carefully avoided. The iramers of the 
Constitution, when drawing up a form of government for a free na'ion, were 
ashamed to confess in the same document the existence of slavery in the 
nation. They hoped it would soon be peacefully abolished. But Providence 
ordered otherwiee. 



IV: 3, 1.] ADMISSION OF NEW STATES. 233 

This clause would still apply to any persons of the 
second or third classes who ran away from one State to 
another. But as their numbers are very few, and as 
slavery has been abolished, this clause has lost its im- 
portance. 

SECTION 3. 
NEW STATES AND TERRITORIES. 

CLAUSE 1. 

ADMISSION OF XEW STAT 

New States maybe admitted by the Congress into this Union; but no new- 
State shall be formed or erected. within the jurisdiction of any other 
State; nor any State be formed by the junction of two or mor 
or parts of States, without the consent of the legislatures of the States 
concerned as well as of the Congress. 

I. New states may be admitted.— The United 
States of America here announces a new principle of 
national life. Nations before this had not been in the 
habit of admitting their dependencies, whether con- 
quered provinces or colonies, to equal political privi- 
leges. It was because Great Britain refused the colo- 
nies a representation in Parliament, and attempted to 
govern them without their consent, that they rebelled, 
and made themselves into the United States. They 
now provided against repeating the mistake. New 
States may be admitted into the Union. When they 
shall be admitted, or under what conditions, is a matter 
left to the discretion of Congress. But when a State is 
admitted, it is entitled to all the privileges of an}' other 
State, as guaranteed by this Constitution. 

II. The consent of states is required to 
change their boundaries. — Congress may carve out 



234 RELATIONS OF THE STATES. [IV: 3, I. 

States as it pleases from the territory outside of any 
State. But it cannot change the boundaries of a State 
without its consent. 

1. No new State can be formed within the limits of an- 
other State without its consent. Maine and West Vir- 
ginia were thus formed. 

2. No new State can be formed by joining two or more 
States, without the consent of all the States affected. 
No such case has occurred. 

3. No new State can be formed from parts of other 
States, without the consent of the States affected. Ver- 
mont was formed by land claimed by both New Hamp- 
shire and New York, 

4. It is plainly implied, though not stated directly, 
that a part of one State cannot be taken from it and 
added to another State, without the consent of both the 
States. But disputes in relation to the boundary are 
settled by the Supreme Court (III, 2, 1-2). The con- 
sent of States is to be given by their legislatures, which 
represent the sovereign people of the States. 

III. How states are admitted. — The method of 
admitting States is not always the same; but the usual 
method is this: The legislature of a Territory sends a 
memorial to Congress asking to be admitted as a State. 
Congress passes an "enabling act " giving authority to 
call a convention. This convention frames a constitu- 
tion which may or may not be voted by the people. 
Congress then passes an act admitting the new State to 
the Union. 

But Congress has several times refused to pass either 
the enabling act or the act admitting the State, and the 
people have several times voted down a constitution 
proposed by a convention. In either case the Territory 
fails at that time to become a State. 



IV: 3, 1.] ADMISSION OF NEW STATES. 235 

Congress lias generally required a Territory to have 
population enough to be fairly entitled to one repre- 
sentative in Congress, before admitting it as a State. 
No Territory which had so much population ever was 
long kept out of the Union. In some cases, St 
have been admitted directly without passing through 
the condition of Territories. 

IV. Disputed questions. 

1. Can Congress create a State ar/ainst the icish of its inhabit- 
ants ? Probably not. As a fact. Congress has never admitted a 
State, except upon the request of its inhabitants. 

Nor is it likely that Congress will ever offer the privilege to peo- 
ple who do not wish it enough to ask for it; and it seems to be the 
spirit of the Constitution that States shall not be admitted with- 
out their own consent, although the letter of the Constitution does 
not demand it. 

2. Can a State be admitted with less population than the ratio of 
rcj)rcsentation ? Yes. Congress has lately admitted several States 
which had less population than would regularly be entitled to one 
Representative. In the case of Nevada there was only one-third 
enough population, but there were so few women and children, it 
was claimed it had its fair proportion of voters. The unwritten 
constitution — the fixed political habits of the people — are, how- 
ever, opposed to such hasty admission of States. But there is 
nothing in the Constitution to prevent it. And no law of Congress, 
such as has recently been passed on this subject, can bind even the 
same Congress, much less succeeding Congresses. The whole sub- 
ject is in the discretion of Congress. 

3. Can a State leave the Union ? In one sense, yes; in another 
sense, no. A State can secede so far as to renounce its privileges 
as a State, but not so far as to rid itself of the rights of the United 
States toward its territory and its inhabitants. When a State se- 
cedes, it loses its privileges as a State, and stands in the relation of 
a Territory, and can only become a State again in the same way in 
which any other Territory can become a State. 

If it succeeds in its rebellion by force of arms, of course it be- 
comes independent, not by any law or clause in the Constitution, 
but by the right of revolution, the right of successful force. But 
if it is defeated in its rebellion, it becomes conquered territory, 



236 RELATIONS OF THE STATES. [IV: 3, 1. 

which is at the disposal of the United States, and which can only 
be re-admitted to the Union by Congress on such conditions as Con- 
gress may impose. 

This was what was clone in the case of the seceded States. (See 
Am. XI V.) The only power which could decide this question was 
CongTess (subject to the President's veto). This is a political ques- 
tion, not a judicial one, and the Supreme Couit will not undertake 
to decide political questions. We need not, therefore, go to the 
Supreme Court for an answer to this question, but to the acts of 
Congress. Congress, over the President's veto, acted on these 
principles in reconstructing the seceded Southern States, and thus 
established this principle. 

It is true that there was much opposition to this view. It was 
maintained by many that a State could not secede. If this meant 
that a State could not constitutionally secede, it is true, for the 
Constitution has made no proviso for a State's seceding. If it was 
meant that a State could not successfully rebel, and thus in fact 
withdraw from the Union, it was not true, for such a thing is very 
possible. A State can of course rebel, and if it succeeds in its re- 
bellion, it is of course out of the Union, although it was unlawful 
for it to thus rebel. But, thirdly, if it is meant that a State can 
rebel (as was meant at that time by those who put in this claim), 
and if successful, enjoy the fruits of that success, but if unsuccess- 
ful, be liable to no punishment, but reassume at once all its privi- 
leges as a member of the Union, this is a premium upon rebellion 
of States, and a political absurdity of the first magnitude. 

It is absurd to claim that the United States can conquer territory 
from Mexico, and govern it as long as it pleases, and only admit 
States formed from it to the Union at such times and under such 
conditions as it pleases; and at the same time to claim that the 
United States can conquer the rebellious State of South Carolina 
and gain no rights from that conquest. The absurdity is only ex- 
ceeded by the preposterous claim made at the beginning of the 
Civil War, that we could not constitutionally coerce a sovereign 
State, as if the rights of self-defense and of conquest were not 
rights inherent in all nations and superior to all Constitutions. 

V. Table of the admission of states. 
The following table gives the original States, and the States since 
admitted to the Union, with the date of admission: 



IV: 3, I.] 



ADMISSION OF NEW STATES. 



237 



ORIGINAL STATES. 



1 New Hampshire. 

2 Massachusetts. 

3 Rhode Island. 

4 Connecticut. 

5 New York. 

6 New Jersey. 

7 Pennsylvania. 

8 Delaware. 

9 Maryland. 

10 Virginia, 

11 North Carolina, 

12 South Carolina, 

13 Georgia, 



14 Vermont. 

15 Kentucky. 
1G Tennessee. 

17 Ohio. 

18 Louisiana. 

19 Indiana. 

20 Mississippi. 

21 Illinois. 

22 Alabama. 

23 Maine. 

24 Missouri. 

25 Arkansas. 

26 Michigan. 

27 Florida. 

28 Texas. 

29 Iowa. 

30 Wisconsin. 

31 California. 
o2 Minnesota. 

33 Oregon. 

34 Kansas. 

35 West Virginia. 

36 Nevada. 

37 Nebraska. 

38 Colorado. 



readmitted 
readmitted 
readmitted 
readmitted 
NEW STATES. 

Admitted. 
March 4, 1791. 
June 1, 1792. 
June 1, 1796. 
November 29, 1802. 
April 8, 1812. 
December 11, 1816. 
December 10, 1817. 
December 3, 1813. 
December 14, 1819. 
March 15, 1820. 
August 10, 1821. 
June 15, 1836. 
January 26, 1837. 
March 3, 1845. 
December 27, 1845. 
December 28, 1846. 
May 29, 1848. 
September 9, 1850. 
May 11, 1858. 
February 14, 1S59. 
January 29, 1861. 
June 30, 1863. 
October 31, 1864. 
January 15, 1867. 
July 4, 1876. 



Jan. 26, 1870. 
June 25. L867. 
June 25, 1867. 
July 15, 1870. 

Readmitted. 



July 24, 1866. 
June 25, 1867. 
Feb. 23, 1S70. 
June 25, 1S67. 

Jan. 22, 1867. 

June 25, 1867. 
March 30, 1870. 



238 RELATIONS OF THE STATES. [IV: 3, 2. 

Vermont was claimed by both New York and New Hampshire. 
The controversy was settled by both giving their consent to the act 
of Congress admitting Vermont as a State. 

Kentucky was a part of Virginia, and was erected a State with 
her consent. 

Maine had been a part of Massachusetts, and was erected into a 
State with her consent. 

Texas had rebelled against Mexico, and had been nine years an in- 
dependent nation, and was admitted totheUnion on her own request. 

West Virginia was formed from a part of Virginia during the 
Civil War. That part of the population of Virginia which re- 
mained loyal reorganized their State government, and then voted 
to set off West Virginia as a separate State, which was concurred 
in by Congress. 

Kentucky, Tennessee and Missouri, by their legislatures or con- 
ventions, voted to secede. In Kentucky the State government 
finally returned to its allegiance. In Tennessee and Missouri there 
were two governments during the war. In each State one govern- 
ment was loyal, and was recognized by Congress. Congress was 
therefore precluded by its own previous action from reconstructing 
these States, as it did the other seceded States, where the govern- 
ment, as well as the most of the people, had been in rebellion. 

• • • - CLAUSE 2. 

THE TERRITORIES. 

The Congress shall have power to dispose of and make all needful rules 
and regulations respecting the territory or other property belonging to 
the United States; and nothing in this Constitution shall he so construed 
as to prejudice any claims of the United States, or of any particular 
State. 

I. The power to acquire territory. — The power 
to acquire territory or other property is not expressed 
in this Constitution. It does not need to be so ex- 
pressed. This power is an attribute of sovereignty. If 
the United States is a nation , it can, of course, acquire 
and hold territory or other property. 1 

1 When Jefferson signed the treaty to purchase Louisiana, he said that he 
"had stretched the Constitution until it cracked. " He was an advocate of 
a strict construction of the Constitution. But the force of circumstances 
compelled him to purchase Louisiana in spite of his theories, and now no 
one pretends that it was unconstitutional, although not expressly stated ia 
the Constitution. 



IV: 3, 2.] THE TERRITORIES. 239 

Before the Constitution was adopted, the United 
States acquired territory from several States by the 
cession of their claims; and since the Constitution waa 
adopted, the United States has trebled its territory by 
purchase and by conquest, by discovery and annexation. 

II. The power to dispose of territory. — The 
power to dispose of territory or property is also an at- 
tribute of sovereignty. It would exist if it was not ex- 
pressed in this clause. But this clause puts the power 
in the hands of Congress. Thus, Alaska was bought of 
Russia, under the general power of any nation to ac- 
quire and dispose of territory. It was therefore done 
by treaty, not by act of Congress. The President witli 
the consent of two-thirds of the Senate bought Alaska. 
But if we should grow tried of our bargain and wish to 
sell Alaska again, an act of Congress would be needed 
to authorize the sale, under this clause. Otherwise it 
could be sold as it was bought, b}' the treaty-making 
power. So also ships of w T ar, arms, clothing, etc., of 
which we had more than was needed at the close of the 
Civil War, were sold under authority of an act of Con- 
gress. No territory of the United States has ever been 
sold to another nation. But Congress ceded that part 
of the District of Columbia south of the Potomac 
river, back to Virginia, under this clause. 

III. The power to govern territory. — The power 
to govern the territory it holds, is also an attribute of 
a nation's sovereignty. Every nation has this right, 
subject to the limitation of treaties and constitutions. 
But this clause gives the power to govern the territory 
of the United States to Congress rather than to an- 
other branch of the government. 

Congress has generally acted in the relation of a 
State legislature as well as of the National legislature 



240 RELATIONS OF THE STATES. [IV: 3, 2. 

to the District of Columbia, and to the unorganized ter- 
ritory of the United States, and has made all their laws. 
But in all the organized territories Congress has au- 
thorized the people to govern themselves, subject to the 
government of the United States. 

Territorial legislatures are elected by the people; but 
the governor and judges are appointed by the President 
with the consent of the Senate. In such case, Con- 
gress really governs indirectly. It delegates the actual 
work of governing to the territorial government, but it 
reserves the right to reverse their action, or even abolish 
their government, at any time. These territorial gov- 
ernments are very much like the colonial governments 
before the revolution. The territories are really col- 
onies of the United States, and are governed as such. 

IV. NO PEEJUDICE TO STATE OE UNITED STATES 

claims. — It is provided that nothing in this Constitu- 
tion shall be so construed as to prejudice any claims of 
the United States or of any particular State. This was 
inserted to satisfy some States whose claims to territory 
had not yet been settled. The conflicting claims of the 
States to territory west of the Alleghanies had nearly 
all been settled just before the Constitution was framed. 
But some of these claims still remained at that time un- 
settled. All these claims were finally settled peaceably. 

V. Claims and cessions of tereitoey by the 

STATES. 

The original settlements of the English colonies were made along 
the Atlantic coast. The English crown claimed this territory by 
virtue of the discoveries of the Cabots, and other later explorers. 
The crown granted these lands to the companies and proprietors 
that settled them, with very little regard for geographical accuracy. 
Massachusetts, Connecticut, New York, Virginia, the two Caro- 
linas, and Georgia, all had grants of the land within their present 
boundaries, but stretching westward to the " South Sea," that is 



IV: 3, 2.] THE TERRITORIES. 9±1 

the Pacific Ocean. The other thirteen colonies had grants not quite 
so vague and extensive, but indefinite enough to give rise to many 
dtsputes about boundaries. If the student will relet to a map, he 
will see that the claims of Massachusetts overlapped the claims of 
New York; that the claims of Connecticut overlapped those of New 
York and Pennsylvania, and that the claims of the Carolina.? and of 
Georgia were likely to conflict. Besides these, New York and New 
Hampshire each had a claim on what is now Vermont, by virtue of 
English charters, and almost every colony had an unsettled ques- 
tion of boundary with its neighbor. 

When the Revolution made the colonies independent Stat •?, no 
power was left to settle these conflicting claims. To add to the 
confusion, Virginia, in 1777, sent an expedition under John B 
Clarke, which captured the country between the Ohio, the I. 
and the Mississippi, from the English, and Virginia claimed this 
territory by right of conquest. It was certain that we should not have 
got this territory at the close of the Revolution, if Virginia had not 
conquered it, so that the claim of Virginia had a show of re.. 

These claims were to two things — to jurisdiction and to the right 
of eminent domain over the soil; that is, each State claimed cer- 
tain territory to govern, and also claimed all the land in it not held 
by private persons, with power to extinguish the Indian titles, and 
to give away or sell the land. On the strength of these claims, the 
States had sold land or given it away to revolutionary soldiers. 
But the conflict of State claims produced a conflict of titles to land. 
Thus, Connecticut had sold lands in the "Wyoming Valley, in north- 
eastern Pennsylvania, to settlers. But Pennsylvania claimed that 
territory, and also sold the same land. Thus there were two sets 
of proprietors of the land, the actual settlers from Connecticut, and 
the speculators who had bought of Pennsylvania. The result was 
that the two States almost went to war. Again, New Hampshire 
sold lands in Vermont to her own citizens, who settled what was 
called " the New Hampshire Grants." New York claimed the ter- 
ritory and tried to enforce the claim. The " Green Mountain 
Boys" organized and armed to resist the claim, and if the Revolu- 
tion had not broken out, there would have been a little war between 
the colony of New York and the settlers of Vermont. It is not to 
be wondered at that each State claimed all it could. But it was 
necessary to the peace and safety of the Union that these conflict- 
ing claims should be settled as soon as possible. 
P 



242 RELATIONS OF THE STATES. [IV: 3, 2. 

During the war, the State legislatures and Congress passed vari- 
ous resolutions. At last New York led the way in giving up her 
claims to the west for the general good in 1780, Virginia followed 
in 1784, Massachusetts in 1785, and Connecticut in 1786. All this 
was done before the Constitution was adopted. As soon as all the 
conflicting claims to the territory between the Ohio, the lakes and 
the Mississippi had been ceded to the United States, Congress passed 
the celebrated ordinance of 1787, for the government of that terri- 
tory, which has been the model for all territorial governments since. 
The conflicting claims of Massachusetts and Connecticut with New 
York and Pennsylvania, were adjusted by arbitration. 

New Hampshire and New York both gave up their claim to Ver- 
mont, and it was admitted to the Union in 1791. Virginia gave 
its consent to Kentucky being set off from her territory into a sepa- 
rate State in 1792. Other cessions of western territory were made 
by South Carolina in 1790, and by Georgia in 1802. Thus all these 
conflicting claims were settled by peaceable means. 

The United States in all these cases gained the entire jurisdiction 
of the territories ceded, but the title to the land was not all given 
to the United States. Most of the States kept a part of the land 
and granted it to their Revolutionary soldiers. So now when the 
United States erects a State out of its territory, it gives up such part 
of its jurisdiction, as a State is entitled to under this Constitution, 
but it keeps its lands, unless it specially gives a part of them to the 
State. 

VI. Territory since acquired. 

The original limits of the United States were between the Atlan- 
tic, the Mississippi, and the boundary of Canada. But on the south, 
the United States did not touch the Gulf of Mexico. Spain held 
what is now Florida and a strip extending west to the Mississippi, 
and all west of that river. 

In 1803, we purchased of France all of what was then called 
Louisiana. France had just acquired it from Spain by a secret 
treaty. Louisiana then included "the island and city of New Or- 
leans, 1 ' and all the Valley of the Mississippi which lies west of that 
river, with some vague claim to the country west of the Rocky 
Mountains. 

The coast of Oregon had been discovered by two trading ships 
from Boston in 1788, and the Columbia (or Oregon) river, in 1792, 
by one of the same ships. In 1804, an exploring expedition under 



IV: 3, 2.] THE TEBRITTORIES. 243 

Lewis and Clark was sent across the country, which explored the val- 
leys of the Missouri and of the Columbia. This was followed by 
settlement in 1811. We thus acquired Oregon by discovery, if we 
did not already have a title to it by the purchase of Louisiana. We 
claimed as far north as the latitude of 42° 40', and the English 
claimed all down to California. We finally compromised on the 
present boundary. 

In 1819 we purchased Florida of Spain. Texas revolted from 
Mexico in 1835, and declared its independence in 1830. It was in- 
dependent for nine years, and in 1815 was annexed to the United 
States, at its own request. In this case, Texas retained the title to 
her soil, and was admitted at once as a State on the same footing 
as the other States. 

At the close of the war with Mexico, we gained by a mixture of 
conquest and purchase what was then called New Mexico and Cali- 
fornia, including all the territory westward to the Pacific and south 
of Oregon. The southern part of Arizona was added to this by 
purchase from Mexico in 1853, and lastly, in 1S07, we purchased 
Alaska of Russia. 

It should be remembered that in acquiring all this territory we 
acquired rights of sovereignty only. The title to the land has been 
purchased of the various Indian tribes, and a large part of the land 
thus acquired has been sold or given away to encourage settlement. 
And as fast as the territory has been settled sufficiently, it has been 
made first into organized Territories and then into States. It is 
not the policy of the United States to govern the territory it ac- 
quires, as dependent provinces; but to erect it into free States, as 
fast as it can wisely be done. It is the glory of the States of the 
Union that they are not jealous of admitting other States to their 
sisterhood. Already the center of population and of power has 
passed to the westward of the Atlantic States. The new States 
which have been erected out of the territory of the United States 
already surpass the original thirteen States in number, in size, in 
population and in wealth. 



244 RELATIONS OF THE STATES. [IV: 4. 

SECTION 4. 

FEDERAL PROTECTION OF STATES. 

The United States shall guaranty to every State in this Union a republican 
form of government, and shall protect each of them against invasion, 
and on application of the legislature, or of the executive (when the 
legislature cannot be convened), against domestic violence. 

I. Guaranty of a republican form of govern- 
ment. — This section provides that the United States 
shall guaranty to every State in this Union a repub- 
lican form of government. This means that no State 
government shall be a monarchy or an aristocracy. 
States have had veiy various details of government in 
their Constitution, and no attempt has ever been made 
to interfere with those, on the ground that they are 
not republican. But should a tyrant ever usurp power 
in a State, or a few men, not the lawful choice of the 
people, ever seize on the government of a State, then 
it would be the duty of the United States to step in and 
overthrow the unrepublican government and call on the 
people to organize a more suitable one. Congress 
alone could do this, and the President could only act as 
authorized and directed by Congress in such a case. 
Nor could the Supreme Court have any jurisdiction in 
such a case. The question would be purely a political 
one, and therefore wholly beyond their jurisdiction. 
Congress alone can decide when a State no longer has a 
republican form of government, and how such a gov- 
ernment shall be guaranteed to it. 

Fortunately no such case has ever arisen. But the 
whole history of our States shows a constant tend- 
ency toward a more republican rather than a less re- 
publican form of government. 



IV: 4.] FEDERAL PROTECTION OF STATES. 245 

II. Protection against invasion. — The United 
States is required to protect every State in the Union 
against invasion. Even if this clause did not expressly 
state this, it would be the duty of the government to 
protect the States against invasion. It is one of the 
greatest things for which governments are organized, 
to protect against foreign invasion; and if nothing were 
said about it in the Constitution, it would still be the 
duty of government. 

Besides, the preamble of the Constitution gives, 
among the objects of this Constitution, " to provide for 
the common defense," and this would include defense 
against invasion. 

What department of the government is entrusted 
with this power? The executive. The President gen- 
erally, by his orders to the army and navy, defends the 
whole United States against invasion. But in sudden 
danger, the officer of the army or navy who is in com- 
mand at the point of danger, does all he can, until he 
hears from the President. 

III. Protection against domestic violence. — 
The Constitution also guarantees eveiy State in the 
Union protection against domestic violence. But for fear 
that the Federal government might make riots or local 
insurrections a pretext to meddle too much with State 
affairs, it is provided that this protection shall onty be 
given on the application of the proper State authority. 
This is the State legislature, or the governor, if the 
legislature is not in session or cannot be convened. 

The President can only interfere to put down an in- 
surrection in a State when he is properly summoned, 
and it is fair to infer that his interference can only last 
until the domestic violence is suppressed, and that he 
must then cease his protection. 



246 RELATIONS OF THE STATES. [IV: 4. 

Several cases have arisen, of domestic violence in a 
State, and the federal power has been fonnd most use- 
ful to protect against riot and insurrection. 

IV. Rival state governments. — But the most 
delicate case is that which has several times occurred, 
when there are two rival governments, each claiming to 
be the lawful one, and one or both appealing to the 
President for help against the other. In such cases, 
who shall decide which is the lawful government ? This 
case dhTers decidedly from the case of a riot or insurrec- 
tion, where there is no pretense of legality. When 
two rival governments exist in a State, and one calls for 
aid against the other, the President must know which 
is the lawful government before he can help either. 
His help will be the practical decision as to which shall 
be the government of the State, and will decide the 
question of fact, if not of law. 

The answer is that in such a case,, if Congress has 
recognized either government, the President is bound 
to follow that decision. But if not, then the President 
must decide to the best of his ability. But Congress 
may at any time reverse that decision and direct a 
change of policy. 



v.j 



AMENDMENTS. 



217 



ARTICLE V. 



AMENDMENTS. 

" The world advances, and in time outgrows 
The laws that in our father's day were best." 

— Lowell. 

ANALYSIS OF THIS ARTICLE. 



II. Ratified. 



I. Pkoposed — < 



III. Limitations.. „ 



1. By two-thirds of each House of Congress. 
Or 

(a.) Applied for by 
legislatures o*f 

;KS sof 

(b.) Called by Con- 
g.ess. 

r 1. By legislatures of three-fourths of the 
States. 

{ », 

I 2. By Conventions in three-fourths of the 
L States. 

1. No amendment before 1S0S to abolish the 
slave trade. 

2. No amendment before 1S03 to change the 
direct taxes. 

3. No amendment to change equality of States 
in Senate. 



The Congress, whenever two-thirds of both Houses shall deem it necessary. 
shall propose amendments to th : s Constitution, or, on the application of 
the legislatures of two-thirds of the several States, shall call a conven- 
tion for proposing amendmen's, which, in either case, shall be valid to all 
intents and purposes, as part of this Const iution, when ratified by the 
legislatures of three-fourths of the several States, or by conventions in 
three-fourths thereof, as the one or the other mode of ratification may 
be proposed by the Congress; provided that no amendment which may 



248 AMENDMENTS. [V. 

be made prior to the year one thousand eight hundred and eight, shall 
in an}' manner affect the first and fourth clauses in the ninth section of 
the first article; and that no State, without its consent, shall bo deprived 
of its equal suffrage in the Senate. 

I. The method of making amendments. — Amend- 
ments to the Constitution may be made in two ways: 

1. Congress may by a two-thirds vote of each House 
propose amendments. If these amendments are ratified 
by the legislatures (or by conventions) of three-fourths 
of the States, they shall be valid; otherwise not. 

2. The legislatures of two-thirds of the States may 
ask for a constitutional convention. 

In that case Congress must call such a convention. 

This convention may propose amendments to the 
Constitution. 

If these amendments are ratified by the legislatures 
(or by conventions) of three-fourths of the States, they 
shall be valid; otherwise not. 

This method of proposing amendments is somewhat 
tedious and complicated. But it is nearly the same 
process by which this Constitution was adopted in the 
first place. The reason which makes it difficult to 
amend the Constitution is well stated in the Declaration 
of Independence: " Prudence, indeed, will dictate that 
governments long established should not be changed for 
light and transient causes; and accordingly all experi- 
ence hath shown that mankind are more disposed to 
suffer, while evils are sufferable, than to right them- 
selves by abolishing the forms to which they are accus- 
tomed." 

II. Restrictions on the power of amendments. — 
These are three: 

1. In the interest of the slave-holding States, it was 
provided that Article I, section 9, clause 1, should not 



V.] AMENDMENTS. 249 

be amended before 1808. This clause allows the im- 
portation of slaves until that time. 

2. It was also provided that Article I, section 0. 
clause 4, should not be amended before 1808. This 
clause provides that direct taxes shall be assessed on the 
States in proportion to the representatis r e population, 
thus favoring the slave-holding States again. 

3. In the interest of the smaller States, it was pro- 
vided that the equal representation of States in the 
Senate should never be changed. Under this restric- 
tion, fhe number of Senators from each State may be 
changed to one, or three, or any other number. But 
the number of Senators must be the same from each 
State. This is now the only provision of the Constitu- 
tion which cannot be amended or repealed. 

III. Disputed questions. 

1. Is the approval of the President necessary to a proj 
amendment? Both the Supreme Court and Congress have decided 
that it is not necessary. 

2. Can a State withdraw its ratification of an amendment? Con- 
gress has decided that it cannot, and that if a State has once rati- 
fied an amendment, it cannot reverse that action. But if a State 
has rejected an amendment, it may afterwards adopt it, and have 
its vote counted. 

3. When is an amendment, once proposed, dead ? This question 
has never been decided by authority; but probably a proposed amend- 
ment never dies. We may suppose that at any time in the future, 
new States, or those which have rejected it, may ratify it, and 
whenever three-fourths of all the States have ratified it, it becomes 
a part of the Constitution. 

4. When States are in rebellion, must a proposed amendment be 
ratified by three-fourths of all the States, or by th>\c-fotuihs of the 
loyal States ? By three-fourths of the loyal States. It has been de- 
cided by Congress that rebel States lose their lights as States, until 
restored to the Union by act of Congress. As rebel States have lost 
their rights as States, they need not be counted in making up the 
number of States, three -fourths of which must ratify a proposed 



250 AMENDMENTS. [V. 

amendment before it becomes a part of the Constitution. It is true 
that Congress, while reconstructing the seceded States, required 
them to ratify the recent amendments. But this was not clone for 
the sake of seeming their votes to make the amendment valid, but 
as a guarantee that the seceded States had accepted the results of 
the war in good faith. 

5. When does an amendment become valid ? When it is ratified 
by the requisite number of States. But it is the duty of the Secre- 
tary of State, as soon as he receives official notice from the requisite 
number of States, to publish the amendment, with his certificate 
that it is ratified. 

IV. List of amendments proposed. 
The following amendments have been proposed, the most of 
which have been adopted: 

1. The first ten amendments were proposed in 1789, and ratified 
in 1791. These were designed as a Bill of Rights. 

2. Two other amendments were proposed in 1789, but were not 
adopted. One of these was to regulate the number of Representa- 
tives. The other was to prevent members of Congress voting an 
increase of salary to themselves. 

3. The Eleventh Amendment was proposed in 1796, and ratified 
in 1798. 

4. The Twelfth Amendment was proposed in 1803, and ratified 
in 1804. This was proposed in consequence of the contested elec- 
tion in 1801. 

5. An amendment to prohibit citizens of the United States re- 
ceiving titles of nobility, presents or offices from foreign powers, 
was proposed in 1811, but not ratified. 

6. An amendment to make slavery perpetual, in hopes of avert- 
ing the Civil War, was proposed in 1861, but was not ratified. 

7. The Thirteenth Amendment was proposed in 1865, and rati- 
fied before the close of the same year. 

8. The Fourteenth Amendment was proposed in 1868, and rati- 
fied in 1868. \ , 

9. The Fifteenth Amendment was proposed in 1869, and ratified 
in 1870. 

Note.— Those amendments which were ratified will be found in fall in 
their proper place. Those which were not ratified read as follows : 

1. After the first enumeration required by the first article of the Constitu- 
tion, there shall be one Representative for every thirty thousand, until the 



V.] AMENDMENTS. 251 

number shall amount to one hundred, after which the proportion shall be 
so regulated by Congress that there shall be not less than one hundred R p- 
resentative3, nor less than one Representative for every forty thousand 
persons, until the number of Representatives shall amount to t'.vo hun 
after which the proportion shall be so regulated by Congress that there shall 
not be less than two hundred Representatives, nor more than oiie Repre- 
sentative for every fifty thousand persons. (Proposed in 17SJ.) 

2. No law varying the compensation for the services of the Senators and 
Representatives shall take effect until an election of Representatives shall 
have intervened. (Proposed in 1789.) 

3. If any citizen of the United States shall accept, cairn, receive or retain 
any title of nobility or honor, or shall, without the consent of Congress, 
accept and retain any present, pension, office, or emolument of any kind 
whatever, from any emperor, king, prince, or foreign power, such person 
shall cease to be a citizen of the United States, and shall be incapable of 
holding any office of trust or profit under them or either of them. (Proposed 
in 1811.) 

4. No amendment shall be made to the Constitution whlcb will authorize 
or give to Congress the power to abolish or interfere, within any State, with 
the domestic institutions thereof, Including that of persons held to labor or 
service by the laws of said State. (Proposed in 1861.) 



252 



SUPREMACY OF THIS CONSTITUTION. 



[VI. 



ARTICLE VI. 



SUPREMACY OF THIS CONSTITUTION. 



ANALYSIS OF THIS ARTICLE. 



O 

P 
H 

M 

1 

o 
p 

EC 

B 1 



1. Consists 
of 



I. All debts and engagements still as valid as under the 

confederation VI, 1 

f (a.) This Constitution. VI, 2 
(b.) Laws of U. S. made 
in pursuance 

■! thereof VI, 2 

(c.) Treaties made 
under the author- 
ity of the U. S. .. VI, 2 



(a.) The judges in every 
State, in spite of 
State Constitu- 
tions or laws .... VI, 2 

(b.) All executive offi- 
cers of the State, VI, 3 

(c.) Members of the 
State L e g i s 1 a- 
tures VI,3 

(d.) The President of 

the IT. S VI, 1,8 

(e.) Senators and Rep- 
resentatives VI, 3 

(f.) A11U. S. executive 

officers VI,3,2 

(g.) A11U. S. judges .. VI, 3, 2 

(a.) An oath of office, 

II, 1, 8, and VI, 3 
(b.) Liability to im- 
peachment II, 4 



II. The Supreme 
Laav op tue ■< 
Land , 



2. 7s bind- 
ing on. 



1 8 ex 

pressed ■ 
by — 



III. No religious test for office shall be required VI, 3 



VI: 2.] THE SUPREME LAW OF THE LAND. 253 



CLAUSE 1. 

DEBTS AXD ENGAGEMENTS. 

All debts contracted and engagements entered into before the adoption of 
this Constitution, shall be as valid against the United States under this 
Constitution as under the confederation. 

All debts and engagements still valid. — When 
a nation changes its form of government, it does not 
lose its identity and become another nation. It re- 
mains the same nation, with a different government. 
A change of government does not release a nation from 
the debts and engagements it has entered into. In 
such a case, the law of nations requires the new gov- 
ernment to assume the debts and fulfill the engagements 
of the old. 

This would therefore have been the duty of the 
United States whether this clause had been inserted or 
not. 

But it was inserted to show the world that we in- 
tended to pay our debts and to live up to our treaties. 
Of course all debts and engagements due to the United 
States are also equally binding. 

CLAUSE 2. 
the supreme law of the land. 

This Constitution, and the laws of the United States which shall be made 
in pursuance thereof, and all treaties made, or which shall be made, 
under the authority of the United States, shall be the supreme law of 
the land; and the judges in every State shall be bound thereby, anything 
in the Constitution or laws of any State to the contrary notwithstanding. 

I. Untied States law the supreme law. — As 
we are one nation, and not a confederacy of nations, 
it is necessary that the national laws should be supreme 
over State laws. If not, we should have thirty-eight 



254: SUPREMACY OF THIS CONSTITUTION. [VI: 2. 

supreme laws instead of one, and the laws of the United 
States would be obeyed only as far as it suited each 
State to obey them. 

South Carolina, in 1832, refused to obey certain laws 
of the United States. This was called nullification, 
because South Carolina wished to nullify those laws, 
that is, to treat them as null and void. This attempt 
was speedily put down bj r President Jackson. 

II. What is United States law? — United States 
law consists of three things: 

1. The Constitution of the United States. This maybe amended, 
but while in force is always the highest law for the United States 
and every State. 

2. All laws of the United States made in pursuance of the Con- 
stitution. This includes all laws of the United States which are 
not unconstitutional. Only the courts can decide whether a law is 
constitutional or not, and until so decided as unconstitutional, it 
must be obeyed as law. 

3. All treaties made under the authority of the United States, 
that is, by the President, with the consent of two-thirds of the 
Senate. When a treaty is made, it repeals all laws that are in con- 
flict with it, as long as the treaty lasts. When the treaty expires, 
these laws come into force again. 

These taken together constitute the supreme law of the land. 
They cease to be* the supreme law in these cases: 

1. When the Constitution is amended, the part abolished' by the 
amendment ceases to be law. 

2. If a revolution should occur, which should destroy our govern- 
ment, the Constitution and law would practically cease to' be law. 

3. When a statute is repealed by Congress it ceases to be law. 

4. When a statute is decided by the courts to be unconstitutional, 
it ceases to be law. If the decision of a lower court is thought 
to be wrong, the case may be carried up to the Supreme Court, 
whose decision is final. 

5. When a law conflicts with a treaty made after the law was 
was made, the law ceases to be law. 

6. When a treaty is broken by mutual consent, is repudiated 
successfully by either party, or expires by its own limitation, it 
ceases to be law. 



VI: 3.] OATH OF OFFICE. 255 

III. State law as controlled by United States 
law. — The law of each State consists of its Constitu- 
tion, and its laws made in pursuance thereof. If this 
law is in conflict with United States law. it is null and 
void. The States cannot nullify United States law, but 
the United States can nullify State law. But this can 
only be done within the limits fixed by the Constitu- 
tion of the United States. 

IV. State judges must decide accordingly. — 
The Constitution makes every judge of a State court 
bound to follow United States law in preference to 
State law. When they come in conflict the State law 
must yield. 

CLAUSE 3. 

OATH OF OFFICE. 

The Senators and Representatives before mentioned, and the members of 
the several State legislatures, and all executive and judicial officers, both 
of the United States and of the several States, shall be bound by oath or 
affirmation to support this Constitution; but no religious test shall ever 
be required as a qualification to any office or public trust under the 
United States. 

I. Oath to support the constitution. — An oath 
to support the Constitution of the United States is 
required of all departments of the State and National 
governments. The persons required to take this oath 
are: 

1. All Senators and Representatives in Congress. 

2. All officers of the United States, executive and 
judicial. This includes military and naval officers. 

3. All members of every State legislature in each 
branch. 

4. All State officers in executive and judicial. This 
includes all county, town, village and city officers. 



256 SUPREMACY OF THIS CONSTITUTION. [VI: 3. 

This oatli of office must be taken in every case before 
entering upon the duties of the office. 

The form of the oath in the United States is pre- 
scribed by Congress, except that of the President, which 
is prescribed by the Constitution (II, 2, 7). 

The form of the oath in each State is prescribed by 
the States. All the States require also of their officers 
and legislators an oath to support the State Consti- 
tution. 

II. No religious test for office. — In England 
at the time this Constitution was adooted, no one could 
hold office who could not take a test oath, which ex- 
cluded all who were not members of the Church of 
England. A religious test was at that time required in 
many States of the Union, and still is in some. 

This Constitution was in advance of the age in abol- 
ishing all religious tests for office. This is now gen- 
erally acknowledged to be wise. We do not now ask of 
any person elected or appointed to any position, " What 
is your belief? " or " To what religious body do you 
belong?" There is no legal hindrance to a person of 
any religion, or of no religion, holding office under the 
United States. 



VII.] RATIFICATION OF THE CONSTITUTION. 257 



ARTICLE VII. 



RATIFICATION OF THE CONSTITUTION. 

The ratification of the conventions of nine States shall be sufficient for the 
establishment of this Constitution between the States so ratifying the 
same. 

1. The manner of ratification. — 1. The Consti- 
tution was to be submitted, not to the legislatures of 
the States, but to conventions elected for that pur] 

by the people of each State. When Congress called 
this constitutional convention which prepared this Con- 
stitution, it expressly provided that the work of the 
convention should be submitted to Congress and to the 
State legislatures for approval by them. But the con- 
vention disregarded these instructions, and submitted 
their work to popular conventions in each State. This, 
however, was done in due form, by submitting the Con- 
stitution to Congress with the request that it be sub- 
mitted to conventions called by the legislatures in each 
State, but elected by the people; and Congress did so 
submit it. The legislature of Rhode Island refused to 
call such a convention for several years, but did so in 
1790. Rhode Island had constantly opposed the Con- 
stitution from the first, and had refused to send delegates 
to the convention which framed this Constitution. 

2. Nine States were required to ratify the Constitu- 
tion. This was two-thirds. of the thirteen States. The 
Articles of Confederation required the consent o*f all 
the States to make any change valid. But if a unani- 
mous vote had been required to adopt this Constitution 

Q 



253 RATIFICATION OF THE CONSTITUTION. [VII. 

in place of the Articles of Confederation, that vote 
could never have been secured. Rhode Island and 
North Carolina would have stood out, and thus defeated 
the Constitution. The framers of the Constitution 
knew this well, and therefore made this Constitution 
go into effect when a two-thirds majority should be 
secured. But in that case the Constitution was to be 
established only between the States ratifying it. 

II. The histosy of the eatification. — The Con- 
stitution was signed and forwarded to Congress Septem- 
ber 17, 1787. Congress voted unanimously September 
28 to send the Constitution to the several State legisla- 
tures, to be by them submitted to " conventions of dele- 
gates chosen in each State by the people thereof." It 
was ratified by nine States in rapid succession, beginning 
with Delaware on December 7. As soon as the ninth 
State ratified the Constitution, Congress proceeded to 
make arrangements for putting the new government 
into operation. Elections' were held for Presidential 
electors, and for Senators and Representatives, and 
March 4, 1789, was set as the day on which the new gov- 
ernment should be organized and New York as the place. 
Meanwhile two more States had ratified the Constitu- 
tion, so that only North Carolina and Rhode Island still 
stood out. 1 The government did not actually go into 
operation on March 4, owing to the difficulties of travel- 
ing in those days. But Congress met and waited until 
April 1 for a quorum. April 6, the electoral votes for 
President and Vice President were counted by a Presi- 

1 The Constitution was ratified by the States as follows: 

By Delaware, Dec. 7, 1787. By South Carolina, May 23, 1783. 

By Pennsylvania, Dec. 12, 1787. By New Hampshire, June 21, 1788. 

By New Jersey, Dec. 18, 1787. By Virginia, June 26, 1788. 

By Georgia, Jan. 2, 1788. By New York, July 26, 178S. 

By Connecticut, Jan. 9,1788. By North Carolina, Nov. 21, 1789. 

By Massachusetts, Feb. 6, 1788. By Khode Island, May 29, 1790. 

By Maryland, April 28, 1788. 



VII.] RATIFICATION OF THE CONSTITUTION. 259 

dent of the Senate (John Langclon, of New Hamp- 
shire), who was elected for that purpose by the Senate' 
John Adams entered on his duties as Vice President 
April 21. and George Washington as Prcsid :nt April 30, 

III. Disputed question-. 

1. As the Articles of Confederation required the consent of all 
the States to any amendment to them, by what right was tltis Constir 
tntion adopted and carried into effect against the wish of two of 
them? By the right of revolution; a peaceable revolution, it is 
true, but none the less a revolution. It is to the honor of the 
American people that they were able to accomplish such a revolu- 
tion, and establish a new form of government by. peaceful discus- 
sion, without the use of force. Such a thing has rarely been done 
in the history of the world. 

.2. What would hare been done [f North Carolina and /, 
Inland had stood out, and refused to ratify the Constitution f They 
would have bejn compelled to ratify it. The other States would 
never have allowed them to exist as independent nations within the 
limits of the United States. As it was, Congress passed an act 
laying a heavy tonnage duty on foreign vessels, but suspended it 
temporarily for Rhode Island and North Carolina vessels. North 
Carolina yielded and ratified the Constitution. A year later the 
Senate passed a bill prohibiting all commerce with Rhode Island, 
and demanding of her a sum of money as her proportion of the 
expenses of the Revolutionary war. These were steps which could 
mean nothing but war; and Rhode Island so understood them. 
Rather than risk a war alone against the other twelve States, Rhode 
Island hastened to ratify the Constitution before the bill could pass 
the House of Representatives. Had Rhode Island not yielded in 
time, there can be no doubt that armed force would have been used 
to compel her. 

3. By what right could the United States hare compelled reluc- 
tant States to assent to the Constitution ? By the right of self- 
preservation; the same light by which, at a later time, the United 
States coerced rebel States. The United States is a nation, and as 
a nation it has the inherent right to do whatever is necessary for 
self-preservation. This right is not given by constitutions, and is 
superior to all constitutions. It is the inalienable right of a nation; 
and a nation which cannot or will not hold its several parts together 
and compel their obedience to the general good of the whole, does 
not deserve to be called a nation. 



260 



BILL OF RIGHTS. 



[Amdts. 



AMENDMENTS I-X. 



BILL OF RIGHTS. 

"We hold these truths to he self evident: that all men arc created equal; 
that they are endowed by their Creator with certain unalienable rights; 
that among these are life, liberty, and the pursuit of happiness; that to 
secure these, governments are instituted among men, deriving their just 
powers from the consent of the governed; that whenever any form of gov- 
ernment becomes destructive of these ends, it is the right of the people to 
alter or to abolish it, and to institute a new government, laying its founda- 
tion on such principles, and organizing its powers in such form, as to them 
shall seem most likely to effect their safety and happiness." — Declaration 
of Independence. 

ANALYSIS OF THIS BILL OF EIGHTS. 

{And of other personal rights guaranteed in the Constitution.) 

f (a.) No establish- 



Freedom 

THOUGHT 



or < 



II. 



Freedom from 

MlLITABT 
OPPRESSION,. 



III. Freedom from 

Exe CUTIVE 
OPPRESSION.. 



1. Religious 
Freedom.. 



2. Freedom of 
expression. 



3. Freedom of 
political 
agitation . . 



ment of re- 
ligion 

(b.) No prohibi- 
tion of re- 
ligion 

(c.) No religious 
test for of- 
fice 

(a.) Freedom of 
speech. 

(b.) Freedom of 
the press.. 

f (a.) Right of as- 

(sembly 
(b.) Right of pe- 
L tition 



Am. I 



Am. I 



VI, 3 



Am. I 



Am. I 



Am. I 



Am. I 



1. Freedom to organize militia Am. II 

2. Freedom from forcible quartering 

of soldiers Am. Ill 

1. No unreasonable searches and 

seizures Am. IV 

2. No person deprived of life,'liberty 

or property, without due pro- 
cess of law Am. V 

2. No private property taken for pub- 
lic use without just compen- 
sation , .... Am. V 

4. Writ of habeas corpus not sus- 
pended, except in war I, 9, 2 



Amdts.] 



BILL OF RIGHTS. 



261 



IV. Freedom from 
Judicial op- 
pression 



1. Before 
trial . , 



2. On trial. 



3. In civil 
suits .. 



(a.) Indictment of 
grand jury re- 
quired, except 
under military 
law Am. V 

(b.) If acquittedonce 
cannot be tried 
again Am. V 

(c.) Right to a speedy 

trial Am. VI 

(d.) Excessive bail 

not required. ..Am. V1I1 

(e.) To be informed 
of the charges 
against him. .. Am. VI 

(a.) Trial public Am. VI 

(b.) By impartial 
jury of the dis- 
trict. .Ill, 2, 3, and Am. VI 

(c.) Not to be com- 
pelled to be a 
witness against 
himself. 

(d.) To be confronted 
With witnesses 
against him. .. 

(e.) To subpoena wit- 
nesses for him. 

(f.) To have counsel 

(g.) No excessive 
fines, or cruel 
or unusual pun- 
ishments Am. 

(h.) Definition of 

treason limited III, 3, 1 

(i.). Stricter evidence 
required to con- 
vict of treason. III. 3, 1 

(j.) Punishment of 
treason less- 
ened III.3 : 2 

f (a.) Trial by jury 
where twenty 
dollars is in 
controversy.... Am. VII 

(b.) Verdict of jury 
settles the ques- 
L tion of fact .... Am. VII 



Am. V 



Am. VI 



Am. VI 
Am. II 



III 



262 



BILL OF RIGHTS. 



[Amdts* 



V. Freedom from 
Legislative 
oppression. 



1. Bills of attainder forbidden I, 9, 3 

2. Ex post facto laws forbidden. . I, 9, 3 

3. No titled aristocracy created .... I, 9, 7 

4. No slavery Am. XIII 

5. Right to vote not denied on* ac- 

count of color. Am. XV 

1. No bill of attainder I, 10, 1 

2. No ex x>ost facto law I, 10, 1 

3. No law impairing the obligation 

of contracts 1, 10, 1 

4. No law creating a titled nobility, I, 10, 1 

5. Citizens of each State entitled to 

piivileges of citizens in all 

States - IV, 2,1 

6. No slavery Am. XIII 

7. Citizenship defined Am. XIV 

8. No State shall abridge privileges 

of citizens Am. XIV 

9. Nor deprive any person of life, 

liberty or property, illegally.. Am. XIV 

10. Nor deny any person the equal 

protection of the laws Am. XIV 

11. Right to vote [not abridged or 

denied Ams. XIV and XV 



VII. Strict construction of personal rights Am. IX 

VIII. Limited powers of U. S. government Am. X 



VI. Freedom 

FROM OP- 

PRE S 3 I O N 

or States. 



I. The reasons for this bill of rights. — A bill 
of rights is a statement of those rights of citizens on 
which the government ought not to encroach. Mon- 
archies are liable to be arbitrary and to have little regard 
for the rights of their subjects. In England the people 
secured themselves against the tyranny of the king and 
his officers by various laws. The first of these was the 
famous Magna Charta, or Great Charter, forced from 
King John in 1215, and the last was the Bill of Rights, 
passed by Parliament in 1689, just after the English 
Revolution. Each of the States had adopted a bill of 
rights during the Revolutionary war or before. 



Amdts.] BILL OF RIGHTS. 263 

One of the chief objections to the Constitution was 
that it did not contain a bill of rights. True, there 
were several things in the Constitution which properly 
belonged in a bill of rights (see analysis). But it was 
claimed that there ought to be a complete bill of 
rights, covering many points not given in the Consti- 
tution. 

IT. The adoption of these amendments. — As the 
States ratified the Constitution, several of them recom- 
mended that a bill of rights be added. When the 
First Congress met, it took into consideration these re- 
quests, and prepared a list of amendments to form a 
bill of rights. The House of Representatives prop< 
seventeen amendments. The Senate 011I3* agreed to 
twelve of these, and the State legislatures only ratified 
ten. These ten now form the first ten amendmen I 
the Constitution. 1 

These ten amendments were proposed l>3* Congress 
Sept. 25, 1789, and ratified Dec. 15, 1701. 

III. The need of a bill of eights.— Under a 
monarchy a bill of rights is needed, but under a re- 
public, there is not so much need of it. Still a bill of 
rights, even under a republic, can do no harm, and 
may sometimes do good. Undoubtedly the principles 
of this bill of rights would have been embodied in our 
laws, whether they were in our Constitution or not. 

Yet the tyranny of a majority over a minorit}* may 
be as unjust as the tyranny of a despot, although less 
likely to occur; and this bill of rights is a safeguard 
against such tyranny. 

IV. The scope of this bill of eights. — These 
amendments were intended as limitations upon the 

1 For the two amendments not ratified, see page 050, note. 



264: BILL OF RIGHTS. [Amdts, 

government of the United States, but not upon the 
State governments. Each of the State Constitutions 
had a bill of rights, embracing all and more than all 
those named in these amendments, and the State con- 
stitutions still contain these bills of rights, designed to 
protect individual citizens of those States from oppres- 
sion by the State governments. 

This bill of rights only extends so far as the civil and 
criminal jurisdiction of the United States goes. But 
that is of no consequence, because the State constitu- 
tions also guarantee nearly all these personal rights. 

Cases may, however, arise, in which this fact would 
be of consequence. Thus, the fifth amendment requires 
the indictment of a grand jury to hold a person for 
trial, except in cases of court martial. But the State 
of Wisconsin has lately returned to the old English 
practice of a preliminary examination before a justice 
of the peace. In that State, persons are constantly 
tried without the indictment of a grand jury; and yet 
the United States Constitution is not violated, because 
the first eleven amendments were not intended as limita- 
tions on the State governments, but on the United 
States government. It would be perfectly constitu- 
tional, but very unjust, for any State to violate the per- 
sonal rights named in these amendments, so far as it 
affected its own citizens merely. Such a case, however, 
would be very unlikely to occur. 1 

i " These amendments to the Constitution are exclusively restrictions upon 
the federal power, to prevent interference with the rights of the States, and 
of their citizens.'" Fox v. Ohio, 5 Howax-d, 434. 



Am. Art. I.] RELIGION, SPEECH AND ASSEMBLY. 265 



ARTICLE I. 

FREEDOM OF RELIGION, OF SPEECH, AND OF ASSEMBLY. 

Congress shall make no law respecting an establishment of religion, or pro- 
hibiting the free exercise thereof; or abridging the freedom of speech, 
or of the press; or the right of the people peaccanly to assemble, and 
to petition the government for a redress of grievances. 

I. Freedom of religion. — One of the worst op- 
pressions of European governments lias been their at- 
tempt to make the people all adopt the religion of the 
government. A large part of the early settlers of this 
counhy fled from Europe expressly to secure religious 
freedom. 

And now in organizing the government of a new 
nation, their descendants demanded that the Constitu- 
tion should guarantee religious freedom. 

The freedom guaranteed is not freedom from religion, 
but freedom of religion. This country is a Christian 
country, in the sense that nearly all its inhabitants are 
Christians, but not in the sense that any one is com- 
pelled to accept the Christian religion, or any particular 
form of it. Any one can believe any religion, or no 
religion at all, and the law will not interfere with his 
faith or practice so long as he does not interfere with 
any one's legal rights. 

This religious freedom, however, does not mean that 
the government of the United States is irreligious. It 
only means that it forces no religion upon the people. 
Prayer is offered at the inauguration of a President; 
each House of Congress lias its chaplains and the daily 
sessions are opened with prayer. The army and navy 
have chaplains. The President recommends Thanks- 



AMENDMENTS. [Am. Art. II. 

II. Feeedom oe speech and oe the peess. — In 
most countries, to speak or write against the govern- 
ment is a great crime, and every one has to be careful 
of what he says on political subjects. In this country 
there is a complete freedom of speech, and of writing 
on political subjects, and on all other subjects so far as 
the rights of others are not interfered with. 

The freedom of speech and of the press is limited by 
the rights of other people. We have no right, under 
the laws of the United States, to slander or libel, or to 
publish obscene books. But so far as our freedom does 
not injure others, we have a right to speak or write 
upon any subject. 

III. Feeedom oe assembly and petition. — The 
right of holding political meetings, and of sending 
petitions to Congress or to any officer of the govern- 
ment, is frequently exercised. Together with the free- 
dom of speech and of the press, it enables the people 
to influence the government constantly, as well as by 
means of the elections. Despotic governments always 
forbid or discountenance efforts to express public opin- 
ion by petition or public meetings. This article guar- 
antees us the right to assemble for any political purpose, 
but it must be in a peaceable manner. 

ARTICLE II. 

THE EIGHT TO BEAE AEMS. 

A well regulated militia being necessary to the security of a free State, the 
right of the people to keep and bear arms shall not be infringed. 

I. The meaning oe this eight.— This provision 
is to secure the rights of citizens to bear arms, and to 
be trained in military exercises. Under it, Congress has 



Am. Art. III.] QUARTERING SOLDIERS. 207 

power to make rules for the militia, but not to forbid 
the organization of the militia. Congress can only pre- 
scribe the methods under which thev can organize 
(I, 8, 16). 

Should the time ever come when a usurper tries to 
gain power against the will of the people, this provision 
may be found of value. In that case, the people could 
organize and defend their liberties. 

This provision was abused in the south just before the 
civil war, by the organization and arming of military 
companies to resist the authority of the United States. 
And it may be abused in like mauner again in times 
when sectional strife or party feeling runs high. But 
that is better than to take away from the people the 
means of defending their liberties. 

IT. Our neglect to exercise this right. — It is 
remarkable that while the founders of our government 
were so tenacious of a militia system, their descendants 
should have neglected it so entirely. Xo people can 
long maintain their freedom who depend upon a stand- 
ing army for their defense against foreign and domestic 
foes. A good militia system is the only safe defense for 
a free country. We are fortunate in being protected by 
the ocean from any foreign foe, but there is danger of 
civil wars, and of mob violence from the dangerous 
classes of our population, and for these contingencies 
we need an efficient militia system, such as we do not 
have now. 

ARTICLE III. 

QUARTERING SOLDIERS. 

No soldier shall, in time of peace, be quartered in any house, without the 
consent of the owner; nor in time of war, but in a manner to be pre- 
scribed by law. 

I. Quartering soldiers in peace. — To quarter sol- 
diers, means to give them board and lodging. Strictly 



268 AMENDMENTS. [Am. Art. IV. 

with soldiers, board is called rations, and lodging quar- 
ters. But actually, when soldiers are quartered in a 
house, they have to be fed as well as lodged. No one 
needs to be told how annoying this may be to families 
to have rude soldiers quartered upon them, nor how 
expensive it may become if long continued. In peace, 
under this article, soldiers cannot be quartered on the 
citizens without their consent, which is not generally 
given. The result is that soldiers in peace generally 
lodge in barracks built for them by the government, 
and are fed by government rations. 

II. Quartering soldiers in war. — But in time 
of war, soldiers must be moved- about from place to 
place so rapidly sometimes that this cannot be thus 
provided for. In summer, they can carry tents with 
them ; but in winter, it may be necessary for them to 
be quartered upon the inhabitants. But this must be 
done, not arbitrarily, but according to law. 

The "owner," whose consent must be obtained, is 
the person who lives there, whether he owns the house 
or not. 

ARTICLE IV. 

UNREASONABLE SEARCHES AND SEIZURES. 

The right of the people to be secure in their persons, houses, papers and 
effects against unreasonable searches and seizures shall not be violated, 
and no warrants shall issue, but upon probable cause, supported by oath 
or affirmation, and particularly describing the place to be searched, and 
the persons or things to be seized. 

Unreasonable searches and seizures. — This arti- 
cle forbids arrests of persons, seizure of property or 
search of buildings without a legal warrant. And this 
warrant must name the particular place to be searched 



Am. Art. V.] RIGHTS OF ACCUSED PERSONS. 269 

or the particular persons to be seized. Thus, if property 
be stolen, neither the loser nor the officers Can search 
a single house without a search warrant; nor can they 
have a general warrant to search any house they please. 
The loser must make oath that he believes the goods 
are in such a place, and on that oath the search warrant 
will be issued to search that place. 

ARTICLE V. 

RIGHTS OF ACCUSED PERSONS BEFORE TRIAL. 

No person shall be held to answer for a capital or otherwise infamous crime, 
unless on a presentment or indictment of a grand jury, except in cases 
arising in the land or naval forces, or in the militia, when in actual 
service in time of war or public danger; nor shall any person be subject 
for the same offense to be twice put in jeopardy of life or limb; nor shall 
be compelled in any criminal case to be a witness against himself, nor 
be deprived of life, liberty or property without due process of law; 
nor shall private property be taken for public use without just compen- 
sation. 

I. The object of these two articles. — The ob- 
ject of this and the next amendment is to secure accused 
persons every chance to prove their innocence. It is 
thought better that ten guilty persons should escape 
punishment than that one innocent person should be 
punished. Therefore every possible chance is given to 
an accused person in the ways provided in this article, 
and in other ways. 

II. Persons cannot be tried until indicted by 
a grand jury. — A capital crime is one that may be 
punished with death. An imfamous crime is one that 
may be punished by death or imprisonment. A grand 
jury makes a presentment against a person on their own 
motion, but they make an indictment upon the com- 
plaint of some one else. In either case they must have 
evidence enough to make it probable that the person 



270 AMENDMENTS. [Am. Art. V. 

presented or indicted is guiit}^ of the crime with which 
he is charged. There must be some probable evidence 
against a person before he can be presented or indicted 
by a grand jury. The grand jury therefore prevents 
accusations being made that have nothing in them. 
It is an annoyance and disgrace and expense to be tried 
for crime, even if not found guilt3 T . The grand jury 
therefore prevents persons being held for trial merely 
to persecute them. 

III. Except under military law. — Armies can- 
not be governed by the slow processes of the courts. 
The army and navy regulations (I, 8, 14) require cer- 
tain duties of soldiers and sailors, and prescribe certain 
punishments for the violations of these regulations. 
These punishments are administered by the officers, at 
once, or by courts martial. All soldiers and sailors in 
actual service are liable to be tried by this military law, 
and when the militia is called out in actual service they 
also are subject to this military law. Soldiers are also 
responsible to the ordinary courts for any crime com- 
mitted by them. 

In case of actual war or insurrection, martial law 
may be proclaimed in the country actually the theater 
of war. In that case the writ of habeas corpus is sus- 
pended (I, 9, 2), and citizens as well as soldiers may be 
tried and punished by court martial. 

IV. Cannot be put in jeopardy twice for the 
same offense.--- No person can be tried twice for the 
same offense. But if the jury disagree, he can be tried 
before a new jury. That is not another trial, but the 
same one continued. If a verdict of " not guilty " is 
given by a jury, the case can never be tried again. But 
if a person is found " guilty " by a jury, he has the right 
to appeal the case to a higher court. In that case, if a 



Am. Art. V.] RIGHTS OF ACCUSED PERSONS. 271 

new trial is granted, lie is not put in jeopardy; for if 
the new trial were not granted he would be punished, 
but in the new trial he has a chance of being acquitted. 

V. Cannot be compelled to be a witness ag 

himself. — No accused person can be compelled to be a 
witness against himself. And, as there is no object in 
making him testify for himself, if he doea not wish to, 
an accused person is not obliged to testify upon his trial 
at all. But if an accused person wishes to make any 
statements, or to testify on his trial, he has the right to 
do so. 

VI. Cannot be deprived of life, liberty or prop- 
erty without due process of law. — This means that 
the government of the United States cannot lawfully 
deprive any person of life, liberty or proper!}' without 
some lawful process. By the fourteenth amendment, 
the same thing is forbidden to the States. " Due process 
of law " means a trial before some regular court, or be- 
fore a court martial, in cases where a court martial has 
legal power. As this is only for soldiers and sailors 
while in service, or for persons near armies that are 
at war, w due process of law " means for almost all 
cases, a regular trial before a court of law. No person 
can be arbitrarily put to death or imprisoned or fined. 
It must be for some violation of law of which he has 
been duly convicted. 

VII. Private property cannot be taken for pub- 
lic use without compensation. — Cases often happen 
where private property is taken for public use. Thus, 
if the United States needs a certain piece of land for a 
fort or arsenal, the land will be taken whether the 
owner wishes to sell it or not. In such a case, if the 
price can be agreed upon between the owner and the 



272 AMENDMENTS. [Am. Art. VI. 

government, it is paid; but if the owner asks more than 
the government is willing to pay, the case is referred 
to a jury, who assess the value of the property, which 
is then paid. 

In case of war, the army frequently seizes provisions 
or horses, or other property, to be used at once. The 
value of this is paid by the government, if it is taken 
from loyal citizens of the United States, but if taken 
from rebels or foreign enemies, the property seized is 
not paid for. 

ARTICLE VI. 

EIGHTS OF ACCUSED PEESONS OK TEIAL. 

In all criminal prosecutions, the accused shall enjoy the right to a speedy 
and public trial, by an impartial jury of the State and district wherein 
the crime shall have been committed, which district shall have been 
previously ascertained by law, and to be informed of the nature and 
cause of the accusation; to be confronted with the witnesses against 
him; to have compulsory process for obtaining witnesses in his favor, 
and to have the assistance of counsel for his defense. 

I. A speedy akd public teial. — When any one 
is arrested on a criminal charge, he is held for trial, 
either in jail or on bail (see page 276). It would be 
unjust to hold an accused person in jail for a long time. 
An accused person is therefore guaranteed a speedy 
trial. That will usually be at the next term of court. 
But an accused person often asks to have his trial put 
off for some reason. This request is generally granted. 
But if an accused person wishes a speedy trial, he can 
have it, under this article. 

All criminal trials are public, to secure fairness in the 
trial. Records are kept by the clerk of the court; 
spectators are admitted, and newspapers often publish 
an account of the proceedings. 



Am. Art. VI.] RIGHTS OF ACCUSED PER- 273 

II. Trial by a jury of the state axd district. — 
It has already been provided (III, 2, 3) that all cri i 
shall be tried by jury, and in the State in which the 
crimes were committed. This amendment provides fur- 
ther, that the trial shall be in the district in which th" 
crime was committed. As all the larger States are div: 
into two or more judicial districts, this restricts the court 
before which a crime can be tried to the district court 
for the particular district in which the crime was com- 
mitted. This district cannot be created for the purpose 
of trying some one. It must have been preyi< 
certained by law. 

The impartiality of the jury is secured (1) by car 
selecting jurors, who, in the United States courts, are 
always men of character and position; (2) by giving both 
sides the privilege of challenging jurors, either for cause 
or peremptorily. If any cause is shown why a certain 
person would be prejudiced as a juror, he is challei. 
for cause, and his name withdrawn from the list. Each 
side can also challenge a certain number peremptorily, 
that is, without giving any reason. 

A jury always consists of twelve persons, and their 
verdict must be unanimous. A grand jury (see page 
269) consists of from thirteen to twenty-four persons. 
and a majority can indict. 

III. The right to know of what he is accused. — 
The warrant on which a person is arrested, and the 
indictment on which he is held for trial, both state the 
offense with which he is charged and the time and place 
of the offense. An accused person has the right to see 
both these writs, or certified copies of them. Kno wing- 
exactly of what he is accused, he has an opportunity to 
prepare his defense. 

IV. The right to cross-examine the witnesses. — 

r 



274 AMENDMENTS. [Am. Art. VI. 

This article gives an accused person the right to be con- 
fronted with the witnesses against him. The object of 
this is to give him the right to cross-examine the wit- 
nesses. After they have told their story, he, or his 
lawyer for him, questions them closely, to make them 
contradict themselves or to bring out something in 
favor of the accused. By such an examination by both 
sides, the whole truth is much more likely to be brought 
out. 

V. The eight to subpoena witnesses. — The u com- 
pulsory process for obtaining witnesses" is called a sub- 
poena. Any person who knows anything of his own 
knowledge about the case may be subpoenaed as a wit- 
ness on one side or the other, and is thus obliged to appear 
and testify at the trial. The government already has 
the right to subpoena witnesses against an accused per- 
son. By this article, the accused also has the right to 
subpoena witnesses in his favor. 

VI. The bight to have counsel. — Any accused 
person may, if he choose, act as his own lawyer. But 
the technicalities of the law are so many that even an 
intelligent and careful person would better entrust his 
defense to a good lawyer, much more an ignorant or a 
timid person. If an accused person is not able to em- 
ploy a lawyer, the judge will appoint a lawyer to defend 
the prisoner, and the government will pay him. 

ARTICLE VII. 

TBIAL BY JUBY IN COMMON LAW CASES. 

In suits at common law, where the value in controversy shall exceed twenty 
dollars, the right of trial hy jury shall be preserved, and no fact tried by 
a jury shall be otherwise re-examined in any court of the United States, 
than according to the rules of the common law. 






I 



Am. Art. VII.] TRIAL BY JURY. 275 

I. The right of trial by jury ix common- law 
oases. — The right of trial by jury in criminal c 
has already been guaranteed (III, 2, 3, and Am. VI). 
The same right is now guaranteed in common lawjcas 3, 
where the value in controversy exceeds twenty dollar.-. 
Where the amount in controversy is smaller, it is not 
worth while to empanel a jury. The time and expense 
of a jury trial is considerable, and it is not fair to ca 
that expense to the government, and that delay to more 
important cases, for the sake of a trifling suit. 

II. Facts finally determined by a jury trial. — 
In the Constitution (III, 2, 3), the Supreme Court Is 
given appellate jurisdiction both as to law and fact. 
This was meant to cover cases in equity, cases in ad- 
miralty, and maritime cases, all of which are tried by 
the court alone without a jury. But for fear it should 
be held to give the Supreme Court appellate jurisdiction 
in suits at law, both as to law and fact, this clause was 
added to the bill of rights. 

The common law of England is that whole body of 
customs, precedents and forms which grew up in En- 
gland in the course of English history. (See page — .) 
The American courts recognize this common law, so far 
as it is not abrogated by any express provision of this 
Constitution or of a statute. Under the common law 
all suits are tried before a judge and jury. The judge 
determines the law and the jury the facts of the case. 

The rules of common law allow only one way of 
re-examining facts once tried by a jury, and that is by 
a new trial before the same court for good reasons. The 
law as applied to any case may be re-examined by a 
writ of error or an appeal to a higher court; but in 
such cases the verdict of the jury is held .conclusive as 
to the facts. 



276 AMENDMENTS. [Am. Art. VIII. 

The effect of this provision is — 

1. To allow equity, admiralty and maritime cases to 
be carried up to an appellate court and re-examined 
both as to the law and the facts. 

2. But to prevent common law cases, which include 
most ordinary law suits, from being re-examined as to 
the facts, unless a new trial is granted before the same 
court. 

ARTICLE VIII. 

EXCESSIVE BAIL, FINES AND PUNISHMENTS. 

Excessive bail shall not be required, nor excessive fines imposed, nor cruel 
and unusual punishments inflicted. 

I. Excessive bail fobbldden. — Bail is the secu- 
rity given, that a person arrested for any offense will 
appear in court and stand his trial, when the time 
comes. When no bail is given, the accused person will 
be kept in jail till his trial; not to punish him, for he 
has not yet been convicted of any crime; but to make 
sure that he will be on hand to be tried. Bail is not 
allowed in capital cases, because a man who expects to 
be hung will be likely to forfeit any security in order to 
escape. 

If excessive bail is required, the accused will not be 
able to furnish it, and it amounts to the same thing as 
to refuse to admit the prisoner to bail. What is excess- 
ive bail in any case, must be determined by the serious- 
ness of the offense charged, and the wealth of the 
prisoner or his friends. 

II. Excessive fines fobidden. — Many offenses are 
punished by fine alone, or by fine and imprisonment. 
If excessive fines are imposed, they may easily amount 
to confiscation of the prisoner's property. The punish- 



Am. Art. X.] LIMITED POWERS. 277 

ment by fine is intended to be a light punishment for a 
light offense. But an excessive fine may be made a very 
heavy punishment. The laws regulate the amount of 
fines for those offenses which are finable. 

III. Cruel and unusual punishments forbid- 
den. — Cruel and unusual punishments are understood 
to mean such punishments as whipping, branding with 
a hot iron, maiming, torturing on the rack, burning at 
the stake, breaking on the wheel, drawing and quarter- 
ing. These were, until a century or two ago, inflicted 
everywhere; but have now been abolished in all civil- 
ized countries. These are forbidden by this article. 

ARTICLE IX. 

STRICT CONSTRUCTION OF PERSONAL RIGHTS. 

The enumeration in the Constitution of certaiu rights shall not be con- 
strued to deny or disparage others retained by the people. 

It is impossible to enumerate fully all the personal 
rights which the tyranny of government might possibly 
violate, and certainly they are not all enumerated in the 
Constitution. For fear that it might be inferred that 
the government could infringe on any personal rights 
not expressly guarded by the Constitution, this article 
was inserted. 

ARTICLE X. 

LIMITED POWERS OF THE U. S. GOVERNMENT. 

The powers not delegated to the United States by the Constitution, nor 
prohibited by it to the States, are reserved to the States respectively, or 
to the people. 

I. The power given to the general govern- 
ment. — 111 the first Congress the motion was twice 
made to amend this article so that it should read, " The 



278 AMENDMENTS. [Am. Art. X. 

powers not expressly delegated to the United States by 
the Constitution, 1 ' and was twice lost. It was pointed 
out by Madison then, that a government, to be a gov- 
ernment, must have implied as well as express powers ; 
that it is impossible to foresee and name in a Constitu- 
tion all the cases which will arise; and this argument 
prevented this word being inserted. Notwithstanding 
this fact, it has been the habit of lawyers and statesmen 
to quote this article with the word " expressly " inserted, 
the very thing which its authors purposely refused to 
do. Had this been made the reading of the Constitution, 
we could never have bought Louisiana or Florida or 
Alaska constitutionally; nor could we constitutionally 
have built a light house or established the signal service. 
As it is, the United States has all the powers granted 
to it by this Constitution, and all other powers that are 
fairly implied in these. All other powers are prohib- 
ited to the United States government. 

II. The reserved powers belong to the people, 
not to the states. — Who has these reserved powers 
then? The advocates of State rights say that all rights 
not expressly given to the United States are reserved 
for the States. We have already seen the falseness of 
that word " expressly." But are all the reserved powers 
given to the States ? No. For in the first place we 
have certain powers expressly forbidden to the States 
(I, 10), some of which are also prohibited to the United 
States. And this article says that certain powers are 
reserved to the people. 

The truth is that in this country the people are the 
source of all power. They have delegated certain 
powers expressed or implied to the United States gov- 
ernment by this Constitution, certain others to the 
State governments, and have reserved the rest, not to 



Am. Art. XI.] STATE REPUDIATION. 279 

be exercised by either till called for by the people. And. 
moreover, lest certain powers extremely liable to abuse 
should be exercised, they have expressly prohibited one 
or both governments from exercising them. 

But it does not follow that the States, any more than 
the United States, can exercise any powers not expiv 
prohibited to them. All powers not given expressly or 
by fair implication to the United States government or 
to the several State governments, are held in reserve by 
the people. 

The people of the United States may grant additional 
powers to the general government, or take away some 
already granted, by an amendment to this Constitution. 
The people of any State may do the same with their 
State government, subject to the limitations of this 
Constitution. 



280 AMENDMENTS. [Am. Art. XI. 

MISCELLANEOUS AMENDMENTS. 



ARTICLE XI. 1 

STATE [REPUDIATION". 

"Let us speak plain; there is more force in names 
Than most men dream of; and a lie may keep 
Its throne a whole age longer, if it skulk 
Behind the shield of some fair-seeming name.'" 

— Lowell. 

The judicial power of the United States shall not be construed to extend 
to any suit in law or equity, commenced or prosecuted against one of 
the United States by citizens of another State, or by citizens or subjects 
of any foreign State. 

I. Cause of this amendment. — At the close of the 
Revolutionary War, the States, as well as the United 
States, were burdened with the debts incurred in that 
struggle, and scarcely able to pay them. Article III, 
Section 2, of the Constitution, gave the United States 
courts jurisdiction over controversies " between a State 
and citizens of another State. 11 After a time suits were 
begun in the Supreme Court (III, 2, 2) by their creditors. 
The Supreme Court decided that, 2 under the Constitu- 
tion, a State could be sued for a debt the same as a 
private person. 

This decision led at once to this amendment, which 
cuts off all suits against a State by private individuals, 
those already begun as well as future suits. Most of 
the States were not in a situation to pay their debts on 
demand, and this amendment operated as a stay-law, to 
give them time in which to pay their debts, as well as 
a bankrupt law for those which could never pay them. 

1 This amendment was proposed by Congress, March 5, 1794, and ratified 
January 8, 1798. 

2 Chisholm vs. Georgia. 



Am. Art. XL] STATE REPUDIATION. 281 

II. Results of tiiis amendment. — The States were 
at once freed from the fear of any power which would 
compel them to pay their debts. A creditor of a State. 
like a creditor of the United States, must now depend 
upon the good faith of his debtor. 

Most of the States eventually paid their Revolution- 
ary War debts. But other debts, since contracted, have 
been repudiated by i$any States, especially the newer 
States. These States have not often repudiated their 
whole debt, but some part of it, where there was some 
special provocation, as where thedebt had been incurred 
by corrupt officials, or where the proceeds had been mis- 
applied in the construction of railroads. 

But these provocations are not sufficient excuse, and 
it remains the disgrace of the United States, that while 
it own obligations have been paid with scrupulous good 
faith, so many State debts have been repudiated in 
whole or in part. 

III. This amendment does not cover municipali- 
ties within A state. — Although a State cannot be sued 
in the United States courts by a private person, the parts 
of the State, such as counties, towns, villages or cities, 
can be sued, and are frequently sued, by private persons. 
If the creditor lives in the same State, he of course sues 
in the State courts. But if he does not live in the same 
State, he can sue in the United States courts. 

IV. Disputed questions. 

1. Can a State have citizens who are not citizens of the 
United States? This is left an open question by this 
section. It is probable, however, that a State has this 
power. Several States have made voters of a large 
number of foreigners, who have only declared their in- 
tention to become citizens, and, if they are voters, they 



AMENDMENTS. [Am. Art. XII. 

must of course be citizens of the States; and no act of 
any branch of the United States government has ever 
questioned this right of the States. 

AMENDMENT XII. 1 

THE ELECTION OF PRESIDENT. 

"Th 1 older a guv'nient is, the betteflw suits; 
New ones hunt folks's corns out like new boots; 
Change jes' for change is like them big hoteis, 
Where they shift plates, an 1 let ye live on smells. 1 ' 

— BlOELOW PArERS. 

The reason por this amendment. — The disputed 
election of 1801 showed the dangers of the method of 
electing President and Vice President under the Con- 
stitution as it then stood. This amendment was passed, 
making such changes as the experience of that election 
had shown to be necessar}^. Another experience of a 
disputed election in 1877, will probably call for another 
amendment embodying another method of electing 
President. 

This amendment has already been treated of in an- 
other place as a substitute for Article II, Section 1, 
Clause 3. 

1 This amendment was proposed by Congress December 12, 1803, and was 
ratified September 25, 1804. For the text of this amendment, see p. 155. 



Am. Art. XIII.] RESULTS OF THE CIVIL WAR. 



AMENDMENTS XIII-XV. 

RESULTS OF THE CIVIL WAR. 

M If New and Old, disastrous feud, 
Must ever shock, like armed ' 
And this be true, till Time shall close, 
That principles arc rained in blood.'" 

— Tennyson*. 

I. Analysis or THESE amendments. 

1. Slavery abolished (Am. XIII i. 

2. Citizenship and its privileges defined (Am. XIV, 1). 

(a.) Citizenship defined. 

(b.) States cannot abridge the privileges of citizens, 
(c.) States must do equal justice to all persons. 
8. Representation in Congress (Am. XIV, 2), 

(a.) Representatives apportioned according to population, 
(b.) Representation abridged as the right to vote is abridged. 

4. Disability of rebels to hold office (Am. XIV, S). 

(a. ) Rebels who have broken their oaths excluded from office. 
(b.) But their disabilities may be removed by Congress. 

5. The public debt versus the rebel debt (Am. XIV, 4). 

(a.) Public debt declared valid. 

(b.) Rebel debts declared illegal and void. 

(c.) Claims for the loss of slaves declared illegal and void. 

6. Negro suffrage established (Am. XV). 

II. The adoption of these amendments. — The 
great Civil War, from 1S61 to 1S65, drew with it many 
important consequences. Chief among these is the en- 
tire reorganization of society in the slave-holding States. 
These amendments mark a great social and political 
revolution; and they were meant to secure the results 
of the Civil War in the surest manner possible under 
our government. 

The reconstruction measures, which went along with 
these amendments, took the political power from the 



284 ' AMENDMENTS. [Am. Art. XII. 

former ruling class of the south, the white aristocracy, 
and put it in the hands of the former slaves and their 
white friends. It is not wonderful that counter revolu- 
tions should have since taken place in all those States, 
which have put their governments back into the hands 
of the former ruling class, the white aristocracy. 

But these counter revolutions have not restored the 
state of society as it was before the war. These three 
amendments have made the negro free, a citizen and a 
voter. These three great facts will remain as legal facts, 
although the negro in some parts of the south may be 
defrauded of some of the privileges of a citizen by un- 
lawful violence or fraud. 

III. A DISPUTED QUESTION". 

Were these amendments constitutionally adopted ? Yes, on either 
theory of the relations of the rebel States. Congress held that rebel 
States have lost their rights as States, and therefore that only three- 
fourths of the loyal States are needed to ratify the amendments. 
This decision by the only lawful authority (for the Supreme Court 
cannot decide political questions) binds us legally, whether it was 
a right or a wrong decision. Three-fourths of the States then rec- 
ognized as In the Union ratified each of these amendments, and 
they are therefore legally a part of the Constitution. 

But even if we accept the State rights theory, these amendments 
were legally ratified, for three-fourths of all the States ratified each 
of them. It is true the rebel States adopted them under a sort of 
compulsion, for Congress required them to ratify these amendments 
as one of the conditions of receiving them into full membership in 
the Union. But that did not make their ratification of these 
amendments invalid. It was the legal act of each State. 

For a time there was a disposition on the part of some to repudi- 
ate these amendments as soon as possible. But all political parties 
have repeatedly declared that these amendments are valid. And 
it is not likely that any political party will ever seriously raise any 
doubts as to the validity of these amendments. They have been 
recognized by Congress, by the President and by the Supreme 
Court. 



Am. Art. XIII.] SLAVERY ABOLISHED. 285 



ARTICLE XIII. 

slavery abolished. 

Neither slavery nor involuntary servitude, except ns a punishment for 
crime, whereof the party shall have heen duly conrtcted, shall cxht 
within the United States, or any place subject to their jurisdiction. 

Congress shall have power to enforce this article by appropriate legislation. 

I. Slavery the pause of the civil war. — One 
of the chief causes of the Civil War was the " irrepn 
ble conflict " between two social organizations so diverse 
as those of the free and of the slave States, bound 
together in one nation. Other causes may be found; 
such as the difference in climate, and therefore in the 
character of the inhabitants and in the nature of their 
industries; the difference of character and ideas between ' 
the first settlers of north and south; or the fatal poison 
of the " State rights " doctrine. But whatever effects 
these had, all clustered around the institution of slaveiy, 
to attack or to defend it. Slaveiy perhaps was not the 
chief cause of the difficulties between north and south, 
but it was certainly the chief egression of those diffi- 
culties. Without it, the war perhaps would never have 
come, and certainly not at the time and in the way it 
did. And thus slavery came to be popularly called the 
cause of the war. It was natural that when the war 
closed with the victory of the north that slavery should 
be abolished. 

II. The origin axd scope of this article. — The 
form of this article is taken from article VI of the 
ordinance of 1787, for the Government of the North- 
west Territory (now the States of Ohio, Indiana, Illi- 
nois, Michigan and Wisconsin). " Any place subject to 
their jurisdiction," includes not only the States, but also 



286 AMENDMENTS. [Am. Art. XIV, 1. 

the Territories, the District of Columbia, forts, arsenals 
and dockyards, United States vessels or naval stations 
owned by us in other parts of the world. 

Congress would have power to enforce this article by 
appropriate legislation (I, 8, 18) without the power be- 
ing expressly granted here, and this section is therefore 
superfluous. The same thing can be said of the similar 
sections at the close of articles XIV and XV. 



ARTICLE XIV. 

MISCELLANEOUS PROVISIONS RELATING TO THE CIVIL 

WAR. 

SECTION 1. 
CITIZENSHIP AND ITS PRIVILEGES. 

All persons born or naturalized in the United States, and subject to the 
jurisdiction thereof, are citizens of the United States and of the State 
wherein they reside. No State shall make or enforce any law which 
shall abridge the privileges or immunities of citizens of the United 
States, nor shall any State deprive any person of life, liberty or property 
without due process of law, nor deny to any person within its j urisdiction 
the equal protection of the laws, 

I. Citizenship defined. — The question of who are 
and who are not citizens had been left somewhat vague 
till this amendment was adopted. And the exact posi- 
tion of free negroes was in doubt. The thirteenth 
amendment had made all negroes free persons. This 
amendment now made them citizens. Hereafter there 
can be no question as to who are citizens of the United 
States. 

All persons born in the United States, except wild 
Indians, are natural-born citizens, and any foreigner 
may become an adopted citizen by being naturalized. 
(See page 88.) 



Am. Art. XIV, 1.] CITIZENSHIP. 287 

II. State citizenship. — Any person who answers 
to the above definition of a citizen of the United States 
may become a citizen of any State by taking up his 
residence in it. Bat he cannot be a citizen of two 
States at the same time. Nor can he become a citizen 
of any State in any other way than by gaining a resi- 
dence within its jurisdiction. Whether a person has 
his legal residence in one State or in another, is a ques- 
tion which is sometimes hard to decide. But once 
establish the residence in a particular State, and the 
citizenship in that State follows. 

Not all citizens of the United States are citizens of 
any particular State. They may be residents of the 
District of Columbia or of a Territory. Nor is it nec- 
essary that all citizens of a State should be citizens of 
the United States. Several States give the privilege of 
voting and holding office to persons who have merely 
declared their intention of becoming citizens. This 
certainly makes them citizens of the State, but not of 
the United States. Thus we see that citizens of the 
United States and citizens of the several States are not 
necessarily the same. A person may be one of them 
without being both. 

III. Privileges and immunities of citizens. — 
As the Supreme Court of the United States has refused 
to enumerate these privileges, we need not expect to be 
able to give these completely. But in general terms we 
may say that citizens of the United States, as such, are 
entitled to the protection of the government in foreign 
lands, and to the equal benefits of the laws of the United 
States at home. Thus: 

(a.) A citizen of the United Spates is entitled to the protection of 
the United States against any unjust treatment by foreign govern- 
ments. 



288 AMENDMENTS. [Am. Art. XIV, 1. 

(b.) If he is of age, he may take up government land under the 
homestead act, on certain easy conditions, the chief of which is that 
he shall live on it five years, and thus have a farm given to him 
free. But a married woman cannot take up a homestead, because 
that would give two hcm3steads to the same family. An unmar- 
ried woman, who is of age, may take up a homestead on the same 
conditions as a man. 

(c.) He is entitled to the use of the post office, the navigable 
rivers and lakes, and the mining lands, on the same terms as other 
citizens. 

(d.) He is entitled to the equal protection of the laws of the United 
States, and also to equal punishment for violating those laws. It 
should be remembered that within the States, United States law 
has a limited scope only. 

(e.) He is entitled to hold any United States office for which he 
is legally qualified, and to which he has been regularly elected or 
appointed. 

Now the privileges and immunities of citizens of the 
United States belong to all citizens of the United 
States, without regard to color, birthplace, religious 
opinions, party, sex or age; and no State can infringe 
them lawfully. 

IV. Protection to life, liberty and property. — 
Our two-fold system of government, United States and 
State governments, limits the privileges of citizens of 
the United States as such, and leaves a wide margin for 
oppression by the States within their own jurisdiction. 
This amendment, therefore, goes on to guarantee not 
only to the citizens of the United States, but to all per- 
sons, equal justice by the State governments. By this 
clause the United States guarantees to all persons 
within its borders, whether citizens or aliens, the in- 
alienable rights named in the Declaration of Independ- 
ence. " We hold these truths to be self-evident, that 
all men are created equal; that they are endowed by 
their Creator with certain inalienable rights; that 



Am. Art. XIV, 1.] CITIZENSHIP. £80 

among these are life, liberty, and the pursuit of happi- 
ness; that to secure these rights, governments aiv in- 
stituted among men, deriving their just powers from 
the consent of the governed."' ' 

Except in the case of the slaves, the practice of our 
government has been in accordance with these princi- 
ples. The great argument against the Constitution 
it was prepared by the convention, was that it did not 
sufficiently secure these personal rights to life, liberty, 
and the pursuit of happiness. These, rights were made 
perfectly secure by the first ten amendments, as against 
any oppressions of the United States government. And 
at last, after slavery was abolished, these rights are by 
this amendment secured as against the oppressions 
the State governments, and thus the Constitution guar- 
antees to every person within the reach of its authority 
the inalienable rights to life, liberty and property, and 
to the equal protection of the laws. To the citizens 
the United States, it guarantees this not only in this 
country, but in foreign lands, so far as the government 
has power to protect them: to foreigners, it guarantees 
them so long as they remain within the United States. 

V. Disputed questions. 

1. Can a State hare citizens who are not citizens of the United 
States ? This is left an open question by this section. It is prob- 
able, however, that a State has this power. Several States have 
made voters of a large number of foreigners who have only de- 
clared their intention to become citizens, and, if they are voters, 
they must of course be citizens of the States; and no act of any 
branch of the United States government has ever questioned this 
right of the States. 

2. What is the status of aliens who have declared their intention 
to become citizens ? They are not citizens, but they have taken the 
first step toward becoming citizens, and are therefore entitled to the 

*The student should memorize this extract from the Declaration of Inde- 
peudence. 



290 AMENDMENTS. [Am. Art. XIV, 2. 

protection of the government, but not to any of the special priv- 
ileges of citizens. The government has several times protected 
them against injustice in foreign lands. 

3. Can a Chinaman be naturalized ? No, he cannot be natural- 
ized as the law now stands. White men and negroes may be, but 
not Chinamen. The law is plain, notwithstanding a difference on 
this point in the practice of the United States courts. But China- 
men can become citizens of some of our States under the State laws. 

4. How can an Indian become a citizen ? An Indian cannot be 
naturalized in the manner prescribed for foreigners. The practice 
has been to declare a tribe or a part of a tribe citizens by a special 
act of Congress on their renouncing their tribal government. In 
some cases, tribes or parts of tribes have been again allowed, by 
act of Congress, to give up their citizenship, and reassume their 
tribal government. Under this section, it would seem that any 
individual Indian ought to be allowed to renounce his tribe and 
become a citizen; but Congress has passed no law to that effect. 

5. Does this section give women the right to vote ? No, it does 
declare them citizens, which they were before, but it does not make 
them voters. Citizenship and suffrage are not equivalent terms. 
But in any State women may be made voters, if the State chooses, 
without any violation of the United States Constitution. The Con- 
stitution does not make women voters, but it does not forbid the 
States making them voters. 

SECTION 2. 

SUFFRAGE. 

Representatives shall be apportioned among the several States according to 
their respec'ive numbers, counting the whole number of persons in each 
State, excluding Indians not taxed. But when the right to vote at any 
election"for the choice of electors for President and Vice President of the 
United States, Representatives in Congress, the executive and judicial 
officers of a State, or the members of the Legislature thereof, is denied to 
any of the male inhabitants of such State, being twenty-one years of age, 
and citizens of the United States, or in any way abridged, except for par- 
ticipation in rebellion or other crime, the basis of representation therein 
shall be reduced in the proportion which the number of male citizens 
shall bear to the whole number of male citizens twenty-one years of age 
in such State. 

I. The object of this section. — This is an at- 
tempt to secure indirectly that which was secured 



Am. Art. XIV, 2.] SUFFRAGE. 291 

directly by the fifteenth amendment — negro suffrage. 
The effect of this section would have been to put a pow- 
erful inducement before the Southern States to give 
negroes the right to vote; and the result would undoubt- 
edly have been that they would have gradually con- 
ceded that right to them. But as this is secured 
directly by the fifteenth amendment, we need only 
consider what effect this section may have in the future. 

II. The effect of this section. — The effect of this 
section, as things now are, is as follows: 

1. It changes the basis of representation from that 
given in Article I, section 2, and makes it the whole 
population except uncivilized Indians. This had al- 
ready been practically done by abolishing slavery. 

2. It is assumed that manhood suffrage shall be the 
rule — that all citizens of the United States who are of 
the male sex and twenty-one years old are voters, unless 
specially disqualified. 

3. It is established, that no State ought to abridge 
the right to vote for any cause except for participation 
in rebellion or other crime. And this extends to State 
elections as well as to United States elections. 

4. The penalty for a State thus abridging the right to 
vote is, that it shall have its representation in Congress 
proportionately reduced. If a State chooses to take 
this penalty, it may abridge the right to vote in certain 
ways. No State has yet been deprived of a part of its 
representation under this section. 

III. What powers over the suffrage are left 
to the several states. — Assuming that manhood 
suffrage of citizens of the United States is the standard 
qualification for voting, the States may constitutionally 
increase the number of voters as much as they please; 
and they may reduce that number in the following ways: 



292 AMENDMENTS. [Am. Art. XIV, 2. 

1. They may shut out traitors from the right to vote. 
The justice of this is evident. After .the Civil War, for 
some time in many of the Southern States those who 
had aided in the rebellion were shut out from voting. 
But it was found impossible to disfranchise permanently 
the most intelligent and wealthy people of the south. 
These restrictions have now all been removed and the 
former rebels now control the Southern States. 

2. They may disfranchise criminals. In every State 
persons convicted of crimes are disfranchised; but they 
are frequently restored to their civil rights by a pardon. 

3. They may require an educational qualification sub- 
ject to the penalty of having their representation re- 
duced. In a few of the Northern States, it is required 
of every voter that he be able to read and write: but 
in those States the number of illiterate persons is very 
small. If such a qualification should be required in the 
Southern States, it would shut out such a large fraction 
of their natural voters, that their representation in Con- 
gress would be greatly reduced. In Georgia and Ala- 
bama, according *to the census of 1870, more than one- 
half of the voters are unable to read and write. In these 
States, such a qualification for the suffrage would reduce 
their Representatives in Congress to less than half the 
number they now have. 

4. They may require a property qualification, subject 
to the penalty of losing a part of their representation 
in Congress. If a considerable amount of property were 
required for a voter, it would reduce the number of 
voters very much, because the mass of the voters are 
men who live by their labor, and have no great amount 
of property. The total value of property in the United 
States, by the census of 1870, is over $300 for each man, 
woman and child in the United States, or $1,500 for each 



Am. Art. XIV, 3.] REBEL DISABILITIES. 293 

family. A property qualification ot 8100 would only 
shut out the paupers, the tramps, and a few young men 
just beginning in life, and would not greatly reduce the 
number of voters. But a property qualification of 
$1,000 would shut out more than one-half of the TOi 
of every State. It is safe to say that any considerable 
property qualification will never be required of v< 
while our present form of government 1 

But many States require a poll tax of $1.00 t<> $1.50 
of each voter before he is allowed to vote. This is not 
a violation of this section, because no one is really pro- 
hibited from voting as long as the amount of tax US 
small. 

SECTION ::. 

REBEL DISABILITIES. 

No person shall be a Senator or Representative in Congress, or elect 

President or Vice President, or hold any office, civil or military, under 
the United State*, or under any State, who, having previously taken an 
oath as a member of Congress, or a> an officer of the United States, or 
M a member of any State Legislature, or as an executive or judicial offi- 
cer of any Stat 3, to support the Constitution of the United Stat - 
have engaged in insurrection or rebellion against the same, or giwn aid 
or comfort to the enemies thereof; but Congress may, by a vote of two- 
thirds of each House, remove such disability. 

I. Political disabilities the oxly punishment 
of rebels ix the civil war. — The disability to hold 
office provided for in this section is the only punish- 
ment inflicted by the United States upon the rebels in 
the Southern States. Every person who had borne 
arms against the government, or who had given aid and 
comfort to the rebel army or government, was guilty 
of treason. (Ill, 3.) This made nearly every white 
man in the seceded States a traitor, and liable to pun- 
ishment for his treason. But not a single person was 
ever brought to trial on that charge, not even Jefferson 



294 AMENDMENTS. [Am. Art. XIV, 4. 

Davis, the President of the Southern Confederacy. 
The only punishment inflicted was that prescribed in 
this section. 

II. The extent of these disabilities. — The ex- 
tent of these disabilities is limited: 

1. Not all rebels are punished, but only those who 
had previously held a position under the United States 
or any State, in which they had sworn to support the 
Constitution of the United States. Rebellion alone 
was not punished, but only rebellion joined with vio- 
lation of an official oath. 

2. The punishment is only a disability to hold office. 
It is not death, or imprisonment, or fine, or even dis- 
franchisement; but only that the guilty person shall 
not hold office. 

3. These disabilities were only to last until Congress 
by a two-thirds vote of each House removed them. 
Within a very few years these disabilities were removed 
from nearly all; and now the persons from whom 
these disabilities have been removed fill most of the 
positions to which the votes of the Southern States can 
elect them in the State governments and in Congress. 

No government in the world was ever so lenient 
toward conquered rebels. It should be noted that this 
section applies to future rebellions as well as to one 
that is past; and that Congress may not always be so 
lenient if a new rebellion should arise in any part of 
our land. 

SECTION 4. 

THE PUBLIC DEBT VERSUS THE REBEL DEBT. 

The validity of the public debt of the United States, authorized by law, in- 
cluding debts incurred for payment of pensions and bounties for services 
in suppressing insurrection or rebellion, shall not be questioned. 
But neither the United States nor any State shall assume or pay any 
debt or obligation incurred in aid of insurrection or rebellion against 



Am. Art. XIV, 4.] THE PUBLIC DEBT. 295 

the United States, or any claim for the loss or emancipation of any 
slave; but all such debts, obligations and claims shall be held illegal 
and void. 

1. The reason of this section. — War is an ex- 
pensive luxury, and cannot be wholly paid for in cash. 
As carried on in modern times, a great war always 
causes a great public debt on both sides. Our Civil 
War was carried on so long, and on such a scale, that 
great public debts were contracted by both sides. 

No conquering power ever pays the debts of the 
beaten side, and certainly no government in the world 
ever paid the expenses incurred by rebels who were de- 
feated. On the other hand, good faith to our creditors, 
and the desire to keep our credit good, would doubtless 
make us pay our national debt without any constitu- 
tional guarantee. But to make assurance doubly sure, 
this section was added. 

II. The provisions of this section. — 1. It prom- 
ises that the public debt of the United States shall never 
be legally questioned. In fact, we have been paying 
off our debts quite rapidly, and our credit is now equal 
to that of any nation in the world. 

2. It prohibits the payment by the United States, or 
by any State, of any debt incurred in support of the 
rebellion. This lifts a load from the Southern States. 

3. It prohibits the payment by either the United 
States, or by any State, of any claim for the loss of 
slaves by the war, or by their being set free. The free- 
dom of the slaves was a consequence of the Civil War. 
Had they been freed by peaceful legislation, they would 
doubtless have been paid for. But they were freed in 
consequence of the war undertaken by their masters, 
and the government therefore rightly refused to pay 
for them. 



296 AMENDMENTS. [Am. Art. XIV, 5. 

SECTION 5. 

APPKOPKIATE LEGISLATION". 

The Congress snail have power to enforce, by appropriate legislation, the 
provisions of this article. 

. The power to enforce this article. — Congress 
has undertaken to enforce the provisions of this article 
by appropriate legislation. 

This section is unnecessary, as Congress would have 
power to pass all needful and appropriate laws to en- 
force this article under the general power given in Arti- 
cle I, Section 8, Clause 18. Even without that, common 
sense would teach that where certain things are ordered 
to be done, the government must be understood to have 
the power to see that they are done. Else the govern- 
ment would stand in the position of that politician 
who was in " favor of the Maine law, but opposed to 
enforcing it." Common sense would teach us that the 
government must be considered to have* all powers 
necessary to enforce the Constitution. 



Am. Art. XV.l NEGRO SUFFRAGE. 297 

ARTICLE XV. 

NEGRO SUFFRAGE. 

The right of the citizens of the United States to vote -h.ill not be denied or 
abridged by the United States or by any State on account of race, color or 
previous condition of servitude. 

The Congress shall have power to enforce this article by appropriate i 2 
tion. 

The negro guaranteed the right op suffrage. — 
For fear that section 2 of the last article would not 
be enough to secure the negroes t lie right to vote, this 
amendment also was passed. Thus these three amend- 
ments each secure an essential right to the negro — 
the thirteenth, the right to freedom; the fourteenth, 
the right to citizenship; the fifteenth, the right to vote. 
Thus at last the principles of our government are car- 
ried out consistently, so far as the negroes are concerne 1 . 
^Whether they are carried out in our treatment of the 
Chinese and the Indians, is a question. But the great 
blot on our character as a nation which loves liberty, 
has been washed out — washed out in blood. And our 
nation now carries out the grand words of Daniel 
Webster: 

"Liberty and Union, now and forever, one and 
inseparable." 



